[00:00:00] Speaker 03:
And so we'll call the first case, which is Green Latinos versus Suncor Energy, 25-1243, and we'll hear from the appellant.

[00:00:28] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:30] Speaker 00:
Kirti Datla on behalf of the Appellants.

[00:00:33] Speaker 00:
I'd like to reserve three minutes for rebuttal, so I'll keep an eye on the clock.

[00:00:37] Speaker 00:
Because the briefing discusses many technical Clean Air Act claims, and because the parties have very different views about how the diligent prosecution bar should work here, I think it'd be helpful to take a step back and lay out what's at stake here.

[00:00:50] Speaker 00:
So to do that, with the court's permission, I'd like to take two and a half minutes to walk through one of our claims, explain how the Diligent Prosecution Bar Analysis should work, and explain why getting it right matters.

[00:01:02] Speaker 00:
So Claim 21 is at Appendix 78, and it's based on a MACD regulatory requirement that flares, which are the tall stacks you can see at the refinery with plumes coming out of them.

[00:01:14] Speaker 00:
meet a specific numeric heating requirement so that they burn hot enough to burn off hazardous air pollutants.

[00:01:20] Speaker 00:
As you know, our view is that the bar applies only if the government has an active civil action, and here there is only a closed one.

[00:01:28] Speaker 00:
So I'll focus instead on the next two requirements of the Diligent Prosecution Bar.

[00:01:34] Speaker 00:
First, we read the act to Bar Claim 21 only if the government's civil action seeks to require compliance with this standard.

[00:01:44] Speaker 00:
So the relevant question here is whether the United States' suits sought to require compliance.

[00:01:50] Speaker 00:
with this minimum heating value.

[00:01:52] Speaker 03:
Can I stop you?

[00:01:53] Speaker 03:
And I just want to make sure that I'm not misunderstanding.

[00:01:58] Speaker 03:
Let's say the EPA or the state imposes an action for fines.

[00:02:06] Speaker 03:
That would certainly be included, wouldn't it?

[00:02:09] Speaker 03:
When you say it suits to enforce, you're not saying that that's confined to injunctive relief.

[00:02:17] Speaker 00:
That's right.

[00:02:18] Speaker 00:
So the requirement is an active suit.

[00:02:20] Speaker 00:
It's sort of irrelevant for that purpose, what relief the United States is seeking.

[00:02:25] Speaker 00:
Thank you.

[00:02:26] Speaker 00:
So the relevant question here is whether the United States' suits sought to require compliance with that minimum heating value.

[00:02:32] Speaker 00:
The party's charts below debated this point.

[00:02:35] Speaker 00:
This is at appendix 1118 and 2078.

[00:02:38] Speaker 00:
Suncor's argument was only that the consent decrees mention, quote, similar requirements in different regulations.

[00:02:47] Speaker 00:
And we explained that those other regulations don't actually contain a numeric minimum heating value, and that these max standards didn't even exist at the time of the consent decrees.

[00:02:59] Speaker 00:
The district court didn't explain how it resolved this disagreement, but I read its opinion to have accepted that similarity is enough for these purposes.

[00:03:07] Speaker 00:
And that was wrong, and it's important that this court say so.

[00:03:10] Speaker 00:
It would mean that if the government sues to address noncompliance with one specific standard,

[00:03:16] Speaker 00:
That would bar not just duplicative suits, but additive suits to enforce, for example, stricter standards or standards related to different requirements that address harms from different pollutants, especially in the context of a consent decree that doesn't have a termination date.

[00:03:33] Speaker 00:
This would make the citizen suit provision largely illusory for the nation's largest polluters like this one.

[00:03:39] Speaker 01:
Counsel, can I ask you what I will phrase as a type of threshold question, which is, how should we be thinking about this limitation in the statute?

[00:03:48] Speaker 01:
Is it jurisdictional?

[00:03:50] Speaker 01:
Is it an affirmative defense?

[00:03:51] Speaker 01:
And how do we place the burdens?

[00:03:53] Speaker 00:
So this court in Continental Carbon said in passing in what I think we can call a sort of drive-by statement that the requirement is jurisdictional.

[00:04:04] Speaker 00:
That was before the Supreme Court's decision in Arbaugh.

[00:04:07] Speaker 00:
After which, I think my count is six or seven of your sister circuits have held that various diligent prosecution bars are not jurisdictional.

[00:04:16] Speaker 00:
They're just sort of ordinary claim processing rules.

[00:04:19] Speaker 00:
And so I think the way you would treat it is like any other sort of affirmative defense that gets litigated on that basis.

[00:04:26] Speaker 00:
I don't think it makes a difference here, because I think that the real way it would make a difference is if there was some dispute about the evidence that you could consider.

[00:04:36] Speaker 00:
Where on 12b1, you might be able to bring in new evidence, but on 12b6, you only consider the evidence in the complaint or in documents you can take judicial notice of.

[00:04:44] Speaker 00:
And here, I think we all agree on the set of documents at issue.

[00:04:48] Speaker 00:
All right.

[00:04:52] Speaker 00:
So as to the third element of the diligent prosecution bar, the diligence element, even if you assume that the United States is suits here, we're trying to require compliance with the same standard in claim 21.

[00:05:05] Speaker 00:
So again, just sticking with this one claim.

[00:05:08] Speaker 00:
Diligence doesn't exist on these facts.

[00:05:12] Speaker 00:
This is the rare case where we have more than a decade of evidence that the government's plan of action isn't securing compliance.

[00:05:20] Speaker 00:
There is nothing left to do under the consent decrees, except to comply.

[00:05:24] Speaker 00:
And yet, as the 2024 Notice of Violation says at Appendix 1746,

[00:05:31] Speaker 00:
We are in a cycle where Suncor violates its requirements and administrative order issues.

[00:05:37] Speaker 00:
And the next year, Suncor violates again with no end in sight.

[00:05:42] Speaker 00:
Under similar logic, the Seventh Circuit in Milwaukee Rivers, the First Circuit in Prasa, and the Sixth Circuit en banc in Jones said that diligence doesn't exist.

[00:05:52] Speaker 03:
Well, is that logical?

[00:05:53] Speaker 03:
You know, we have a lot of criminal cases where defendants get very severe criminal penalties, and they are recidivists.

[00:06:00] Speaker 03:
and we see them, and district courts see them over and over, is the fact that Suncor has, in your view, continued to violate the pollutant requirements, is that really logically indicative of a lack of diligence on the part of the regulators, or is it attributable to Suncor's persistence in violating the requirements?

[00:06:23] Speaker 00:
Yeah, so I'll say two things maybe.

[00:06:27] Speaker 00:
So first, I think the Seventh Circuit's decision in Milwaukee Rivers is pretty helpful on this point, because it says when you have a consent decree that is sort of so long ago, one of two things, and violations are still occurring, one of two things is happening.

[00:06:41] Speaker 00:
Either the way, the kind of solution that the government chose in that original consent decree isn't up to the task.

[00:06:48] Speaker 00:
It's not capable of producing compliance with the standards at issue.

[00:06:52] Speaker 00:
Or the reason for the violations persisting is something that that original solution didn't anticipate but obviously hasn't been addressed.

[00:07:00] Speaker 00:
And in either case, it's not diligence.

[00:07:02] Speaker 00:
I think maybe another way to put it is just doing something isn't diligence.

[00:07:08] Speaker 00:
If after 10 years, Suncor's pattern of violation hasn't changed and neither has the government's conduct or attempts to solve that problem, then that's not diligence.

[00:07:20] Speaker 00:
What might be a harder case, but we don't have any evidence up here, is that the government kind of every time this happened, ratcheted it up, went back to the consent decrees, filed a contempt order, filed a new lawsuit.

[00:07:34] Speaker 00:
Instead of imposing stipulated penalties, imposed the civil penalties under the statute, which have a much higher maximum daily rate.

[00:07:41] Speaker 00:
That's the kind of thing where I think this might be a harder case.

[00:07:44] Speaker 00:
But here, we're just, as I mentioned, in this cycle.

[00:07:48] Speaker 00:
So the last thing I'll say on diligence as to kind of running through this claim is that

[00:07:53] Speaker 00:
Reaching a different result than your kind of sister circuits on similar facts here would mean that Suncorp can just keep violating, keep paying stipulated penalties that to us seem like it's cost of doing business at this point and our clients will suffer.

[00:08:07] Speaker 00:
And the declaration supporting our standing documents go through how our clients are kind of checking air quality alerts before they allow their children to play outside, before they decide whether to open the windows in their homes.

[00:08:19] Speaker 00:
These are kind of

[00:08:20] Speaker 00:
everyday daily impacts.

[00:08:22] Speaker 00:
And we think Congress enacted the citizen supervision precisely so they wouldn't be helpless in a situation like this.

[00:08:28] Speaker 00:
So I think the upshot of this discussion so far is that the simplest way to resolve this case might be to assume that the United States' suits trigger the bar, assume that maybe some of our claims seek to enforce compliance with similar standards as the US,

[00:08:48] Speaker 00:
and say, for any of those claims, diligence doesn't exist here, because it's been more than a decade since the last requirement of the consent decree passed.

[00:08:57] Speaker 01:
When you say assume similar standards, I'm going to refer back to comments you made at the beginning of your argument that it has to be the same standard.

[00:09:05] Speaker 01:
So you're not conceding.

[00:09:06] Speaker 01:
Similar is sufficient, are you?

[00:09:08] Speaker 00:
Yeah.

[00:09:08] Speaker 00:
If I misspoke, I apologize.

[00:09:10] Speaker 00:
Assume that they seek to require compliance with the same standards.

[00:09:14] Speaker 00:
And on that assumption, that would mean that the United States

[00:09:18] Speaker 00:
as a 20 year old solution that we have over a decade of evidence saying it's just not working.

[00:09:23] Speaker 01:
So we can't hone in on the diligence for a moment because as I understand it, these dockets in the Southern District and Western District of Texas are still active and even as of August of last year, there were status reports being filed regarding the consent decree.

[00:09:37] Speaker 01:
But as I understand your argument now, your overall point is

[00:09:41] Speaker 01:
Regardless of whether or not there are occasional filings on these dockets, it's not sufficiently diligent because there's still so much gap in terms of compliance and then the enforcement lagging behind.

[00:09:54] Speaker 01:
Does that capture your argument?

[00:09:56] Speaker 00:
That's right.

[00:09:57] Speaker 00:
I mean, I think we probably disagree that they're active.

[00:09:59] Speaker 00:
Like, the cases are closed.

[00:10:00] Speaker 00:
You would need to move to reopen the judgment if you wanted to do anything in these cases.

[00:10:05] Speaker 00:
The status reports are active litigation seeking to decide whether or not violations are happening.

[00:10:11] Speaker 00:
But even setting that aside, I think we would agree with what you said as to diligence.

[00:10:16] Speaker 00:
One helpful way to think about diligence in the case law is, is the government solution capable of requiring compliance with the standards it's trying to achieve compliance with?

[00:10:27] Speaker 00:
And you can think of the cases as falling on a spectrum.

[00:10:30] Speaker 00:
Heartland of the diligent prosecution bar is when the government sues and a person sues right afterwards.

[00:10:36] Speaker 00:
So they're kind of two active suits.

[00:10:38] Speaker 00:
And the person suing afterwards kind of is, at the end of the day, second guessing the government's choice.

[00:10:44] Speaker 00:
Usually there's a proposed consent decree.

[00:10:46] Speaker 00:
Usually they're not happy with it.

[00:10:48] Speaker 00:
And that's the debate.

[00:10:50] Speaker 00:
And at that stage, it's really hard to have a basis to say, well, we don't know if the solution is going to work.

[00:10:56] Speaker 00:
If it's capable of requiring compliance, it's too early to tell.

[00:11:00] Speaker 00:
There are institutional competence reasons.

[00:11:02] Speaker 00:
We don't take any issue with that.

[00:11:04] Speaker 00:
But this is really the most extreme set of facts that would exist in the case law.

[00:11:08] Speaker 00:
And we think at the opposite end of the spectrum, it's not

[00:11:13] Speaker 00:
It just isn't capable, but reasonable to find diligence on these things.

[00:11:17] Speaker 01:
So does your argument also depend upon us making a finding that any administrative actions that have happened do not fall within the umbrella of a diligent prosecution?

[00:11:28] Speaker 00:
Yeah, so I want to be very clear about what the dispute is between us and Suncor on this point.

[00:11:34] Speaker 00:
And maybe I'll simplify it down as much as possible to show what I think the dispute is.

[00:11:41] Speaker 00:
If there is a civil action, and I guess we'll just call it the consent decrees for the sake of this answer, if there are later administrative actions that are actually enforcing the consent decree, we think you can take that into account as to diligence.

[00:11:58] Speaker 00:
So imagine there is a consent decree that covers just one claim, and later administrative actions cover that one claim from the consent decree, but also a second entirely unrelated claim.

[00:12:10] Speaker 00:
It's totally fair game to say that one of our claims that is that same first claim that's both in the consent decree and in the administrative document, that's all relevant to the diligent prosecution bar.

[00:12:22] Speaker 00:
What I think Suncor is trying to do with its emphasis on the 2024 notice is to say, as long as there is an administrative document that has both of those claims in it, the bar applies to both of those claims, even though the second claim was never part of any judicial action.

[00:12:41] Speaker 00:
And that's where we disagree, because the Clean Air Act just doesn't have an administrative diligent prosecution bar.

[00:12:48] Speaker 03:
Kevin Stopper clock.

[00:12:51] Speaker 00:
Thank you.

[00:12:53] Speaker 03:
I do have a question.

[00:12:56] Speaker 03:
I did have a question.

[00:12:59] Speaker 03:
And that is based on what you just said, are you then acknowledging that the consent decrees

[00:13:10] Speaker 03:
if they were enforceable through an administrative proceeding would be considered part and parcel of those judicial actions to enforce the standards.

[00:13:24] Speaker 00:
So I think if this court is at the stage where it's considering the consent decrees, then it will have already decided that there is an active

[00:13:36] Speaker 00:
civil action that is the consent decrees.

[00:13:38] Speaker 00:
And the reason the consent decrees are active is because they are being prosecuted.

[00:13:43] Speaker 00:
If it was just the consent decree and nothing happened afterwards, I think everyone would agree that the Diligent Prosecution Bar wouldn't apply.

[00:13:50] Speaker 00:
So if you're in a situation where you've disagreed with us and you've said what matters is a consent decree counts, and the reason it counts is because there are still active actions taken to enforce the consent decree,

[00:14:02] Speaker 00:
And at that point, we're willing to have the discussion about whether the administrative enforcement is enough.

[00:14:07] Speaker 03:
I had thought from your briefing that you had made two distinct arguments.

[00:14:12] Speaker 03:
And so sorry to belabor this, but this is really helpful to me.

[00:14:17] Speaker 03:
So I thought you were arguing that the consent decrees were over, that those can't be considered ongoing judicial actions to enforce the standards.

[00:14:27] Speaker 03:
And you say the 2024 notice of violation, a separate administrative mechanism, which the Suncorp relies on.

[00:14:38] Speaker 03:
And I thought you had been arguing in your breeze that those would not count as a judicial action because those are administrative mechanisms.

[00:14:50] Speaker 03:
But it sounds like that's not what your argument is, is that if the two consent decrees contemplated administrative actions filed in administrative proceedings to enforce the underlying obligations embodied in the consent decrees, those would count as long as

[00:15:12] Speaker 03:
the consent decrees and the administrative proceedings were both strapped to an underlying obligation that was memorialized in both, right?

[00:15:25] Speaker 00:
Yeah.

[00:15:26] Speaker 00:
So I think I agree with the last thing you said.

[00:15:29] Speaker 00:
But I just want to be very clear, because when we discuss this in the briefs, Suncor seems to take this as a concession.

[00:15:35] Speaker 00:
And I don't want that to happen right after I sit down.

[00:15:40] Speaker 00:
The dispute here is really as to anything in the 2024 notice of violation that cannot be linked back to the consent decrees.

[00:15:51] Speaker 00:
That's irrelevant.

[00:15:52] Speaker 00:
None of our claims related to that count.

[00:15:54] Speaker 00:
And there are real disputes.

[00:15:56] Speaker 00:
These documents are very precise about when they're enforcing a consent decree provision versus something else.

[00:16:02] Speaker 00:
And there are real disputes that aren't kind of cashed out in the district court's opinion about which standards are at issue.

[00:16:08] Speaker 02:
All right, thank you.

[00:16:09] Speaker 02:
Well, I'm confused now.

[00:16:12] Speaker 02:
I thought you were saying that in the absence of new litigation, that was a violation.

[00:16:20] Speaker 02:
Secondly, that the various items that were covered in the earlier consent decree were not the same things that you are arguing about today.

[00:16:37] Speaker 02:
Now, might I go on on that?

[00:16:39] Speaker 00:
So I don't think you're wrong, but let me repeat it back just to make sure we're on the same page.

[00:16:44] Speaker 00:
So our first line argument is and remains that there isn't an action in civil court, and that should end the inquiry.

[00:16:52] Speaker 00:
But we recognize the court might not want to decide the case on that basis.

[00:16:56] Speaker 00:
And so our second line argument has been and remains that none of the claims at issue are seeking to enforce compliance with the same standards as the United States' suits.

[00:17:08] Speaker 00:
And our third line argument is, even if you disagree with us about any of that, diligence doesn't exist.

[00:17:32] Speaker 04:
Good morning, Your Honor.

[00:17:33] Speaker 04:
My name is Hugh Gottschalk.

[00:17:35] Speaker 04:
representing Suncor with me at council table are John Bernicek and Carlos Romo.

[00:17:42] Speaker 04:
It is clear that the appellants would prefer the agencies to take a more aggressive strategy to seek additional remedies that they have not so far.

[00:17:55] Speaker 04:
This court in Carr, however, made clear

[00:17:58] Speaker 04:
that the strategies of the agencies need not coincide with what the plaintiff's citizen suit would like, and the fact that the plaintiffs in the citizen suit are urging more aggressive remedies is not the basis of decision.

[00:18:15] Speaker 04:
The decision is based on diligent prosecution.

[00:18:19] Speaker 04:
It is based on deference to the agencies, which this court in Carr has said is to be required.

[00:18:27] Speaker 04:
And as this court did in Carr, the citizenship should be dismissed because the agencies are pursuing diligently and in their own judgment the best way to proceed.

[00:18:41] Speaker 04:
The same standard.

[00:18:44] Speaker 04:
the same standards.

[00:18:45] Speaker 04:
And that's exactly what I was going to get to.

[00:18:48] Speaker 04:
No, that's all right.

[00:18:51] Speaker 04:
There's a little bit, I think, sleight of hand going on here.

[00:18:55] Speaker 04:
The same standards and limits are the words of the statute.

[00:19:01] Speaker 04:
The same standards are applicable throughout both the consent decrees and the

[00:19:08] Speaker 04:
consent decree enforcement actions.

[00:19:10] Speaker 04:
They are the RAC standards, the NSPS standards, all those Clean Air Act acronyms permeate the whole thing.

[00:19:19] Speaker 04:
This is all about the same standards.

[00:19:23] Speaker 04:
The argument they're making is that the district court said substantially similar emissions violations.

[00:19:32] Speaker 04:
and they're jumping on substantially similar as being different than the statute.

[00:19:36] Speaker 04:
But again, this court in Carr made clear that the case, the claims, the remedies, the details of the cases don't need to be the same.

[00:19:45] Speaker 03:
Boy, that is a loose

[00:19:49] Speaker 03:
Interpretation of car I thought well.

[00:19:52] Speaker 03:
You know what car said is did you tell me if I'm misremembering it is that the court said well It doesn't they they don't the agencies don't have to pursue as many violations, so if there's a benzene emission that that that is violating the standard every single day of the year and

[00:20:15] Speaker 03:
and a group like Green Latinos asserts a violation for three days, well, if the agency wants to pursue it for one day, that doesn't matter.

[00:20:29] Speaker 03:
But benzene is benzene.

[00:20:31] Speaker 03:
And so hypothetically, if the consent decrees say nothing about violation of benzene emissions,

[00:20:42] Speaker 03:
And the agencies in saying the 2024 notice of violation is pursuing at least a notice of violation, disagree a bit whether that's commencement of litigation, is pursuing a violation of benzene that is at least different than what the

[00:21:05] Speaker 03:
the litigation was in the two court proceedings, correct?

[00:21:09] Speaker 04:
I would agree, but I think the car went significantly further than that.

[00:21:13] Speaker 04:
And if the basic facts are car, the agencies went out and looked at 37 well-permitted sites in the Batata Basin in Oklahoma for permit violations.

[00:21:24] Speaker 04:
And they chose to pursue 21 out of those 37 sites.

[00:21:29] Speaker 04:
And they pursued it down an agency enforcement path.

[00:21:32] Speaker 04:
And the citizens who came along and said,

[00:21:34] Speaker 04:
We're going to pursue the other 16, because the agency didn't pursue these other 16 well permit sites in the potato basin in Oklahoma.

[00:21:45] Speaker 04:
And Carr said, this court said, no, the agency went out, looked at these issues.

[00:21:51] Speaker 04:
We don't really understand why they took 21 and didn't pursue the other 16, but they are enforcing the clean air,

[00:22:02] Speaker 04:
Clean Water Act in that case, and we are going to defer to the discretion of the agencies, not only on the benzene example you identified, but on their selection of precise, I would

[00:22:17] Speaker 04:
In that case, it was locations, analogizing to this case, precise equipment and other things related to the refinery.

[00:22:24] Speaker 04:
The agencies have entered orders and enforcement orders relating to the Suncor Denver refineries.

[00:22:34] Speaker 04:
And our fundamental argument based on CARA is this court should defer to the discretion of the agencies and how they're tackling this problem.

[00:22:45] Speaker 04:
Not to prosecute.

[00:22:47] Speaker 04:
If they investigate and not prosecute.

[00:22:49] Speaker 04:
To not prosecute or to prosecute one and not the other because if the limits on this prosecution, limits on this equipment were enforced, it would have a spillover effect on that piece of equipment.

[00:23:02] Speaker 03:
So the diligent prosecution bar would prohibit an entity like Ring Latinos from pursuing an action that the agency

[00:23:14] Speaker 03:
had diligently investigated and decided not to prosecute.

[00:23:19] Speaker 03:
And we're just using a fiction and calling it a diligent prosecution board.

[00:23:27] Speaker 04:
No, I think the diligent prosecution is of the standards, the standard of the clean air.

[00:23:32] Speaker 03:
But you're saying that they investigated and didn't prosecute.

[00:23:35] Speaker 03:
Let me ask it a different way.

[00:23:37] Speaker 03:
The FBI decides, Bob Baccarat, we think you are dealing methamphetamine.

[00:23:42] Speaker 03:
And they investigate, and they decide, well, we're not going to pursue this.

[00:23:48] Speaker 03:
Have I been prosecuted?

[00:23:51] Speaker 03:
I've been investigated.

[00:23:52] Speaker 04:
You think you've been investigated.

[00:23:54] Speaker 03:
But I haven't been prosecuted.

[00:23:56] Speaker 03:
It's a diligent prosecution board.

[00:23:59] Speaker 04:
And how that diligent prosecution proceeds

[00:24:06] Speaker 04:
whether in the criminal context you're using or in the environmental context, is what the discretion of the agencies is about.

[00:24:13] Speaker 04:
There are citations from various cases that talk about maybe the fines should be lower because you can get more remedial relief, more injunctive relief over here in a consent decree.

[00:24:28] Speaker 04:
The court should just not get into

[00:24:32] Speaker 04:
And I'll use opposing counsel's example, Claim 25.

[00:24:36] Speaker 04:
Let's look in the middle of all of this, Claim 25.

[00:24:39] Speaker 04:
Here's what we think should happen on Claim 25.

[00:24:42] Speaker 04:
Or I'm sorry, 21 is the one she used.

[00:24:46] Speaker 04:
And the cornerstone of this is the agencies are diligently prosecuting the standards of the Clean Air Act.

[00:24:57] Speaker 04:
relating to Suncoast Denver refineries.

[00:24:59] Speaker 03:
For the same pollutants?

[00:25:00] Speaker 04:
For the same pollutants.

[00:25:02] Speaker 04:
And let me just jump ahead to there.

[00:25:05] Speaker 03:
Well, before you do that, I accidentally talked over my colleague.

[00:25:09] Speaker 03:
Don't lose your train of thought.

[00:25:10] Speaker 03:
OK.

[00:25:11] Speaker 03:
Is that OK?

[00:25:13] Speaker 03:
Yeah.

[00:25:13] Speaker 03:
I accidentally just talked over Judge Kelly.

[00:25:15] Speaker 02:
Oh.

[00:25:16] Speaker 02:
Yeah, I'd like to answer the question.

[00:25:22] Speaker 02:
In CAR, the government has submitted a proposed incentive group

[00:25:25] Speaker 02:
The prosecution was diligent.

[00:25:30] Speaker 02:
It was not ongoing.

[00:25:35] Speaker 02:
And here, we don't have that.

[00:25:38] Speaker 02:
We don't have anything from the time the consent decree was entered, x number of years ago, as I understand it.

[00:25:49] Speaker 02:
So there's just been nothing since then.

[00:25:54] Speaker 02:
So we've now moved to diligent prosecution, which I'll get to and then I'll get back to your question.

[00:26:13] Speaker 04:
The record is clear, there's been diligent prosecution.

[00:26:18] Speaker 04:
The consent decrees you referred to, which are quite a few years back,

[00:26:22] Speaker 04:
You're correct.

[00:26:23] Speaker 04:
Have continuing jurisdiction provisions that allow further actions under the continuing jurisdiction of the court in those cases.

[00:26:35] Speaker 04:
There is admittedly a significant number of years where there's not.

[00:26:40] Speaker 02:
What has been done?

[00:26:42] Speaker 02:
I want to know what has been done that qualifies as diligent in this case?

[00:26:47] Speaker 04:
In the past five years, there have been four agencies have commenced different actions.

[00:26:55] Speaker 04:
The 24 notice of violation, Judge Backrack identified already.

[00:26:59] Speaker 04:
But they are in the record very clearly.

[00:27:02] Speaker 04:
There are five actions that have been taken in the last five years, all of which recite that we are enforcing the consent decree from years back.

[00:27:15] Speaker 04:
And for example, the most graphic example I can give is there are stipulated penalties.

[00:27:22] Speaker 04:
Those five administrative actions taken pursuant to the consent decrees continuing jurisdiction and reciting that they are pursuant to the consent decrees imposed stipulated penalties and those stipulated penalties come from the consent decrees.

[00:27:42] Speaker 04:
The authority to impose stipulated penalties, they were stipulated going back to consent decrees.

[00:27:48] Speaker 04:
So without question, Judge Kelly, there is a significant gap of years where there's nothing in the record of anything happening.

[00:27:55] Speaker 04:
There's no record of enforcement actions.

[00:27:58] Speaker 04:
But on the other hand, there's no record of violations or anything else.

[00:28:02] Speaker 04:
There's just sort of a black box period followed up by, starting in 2020, five

[00:28:09] Speaker 04:
administrative consent decree enforcement actions, which recite they are taking action pursuant to the authority granted in the consent decree.

[00:28:19] Speaker 04:
And I would say, if I could say one last thing on diligent prosecution, several of the cases Sabalo and others have said,

[00:28:28] Speaker 04:
The consent decree is not the be-all and end-all of due diligence or of diligent prosecution.

[00:28:35] Speaker 04:
You have to look at what has the agency done to enforce the consent decree.

[00:28:41] Speaker 04:
I don't think the Green Latinos disagrees with on that.

[00:28:46] Speaker 04:
And my ultimate answer to your question, Judge Kelly, is there are older consent decrees, sort of a black box period where there's no violations or no agency actions in the record.

[00:28:58] Speaker 04:
And then five or six years of agency actions referring back to enforcement of those consent decrees.

[00:29:06] Speaker 04:
And that is the due diligence.

[00:29:09] Speaker 02:
It covered the exact same, it's your position, that these enforcement actions over the past few years covered the exact pollution issues, items, that were complained about currently.

[00:29:27] Speaker 02:
I was under the impression that some of the items will continue to exist back when the consent decree... When the consent decree was entered, there was... Does it cover everything?

[00:29:41] Speaker 04:
I'm sorry?

[00:29:42] Speaker 02:
Does it cover everything?

[00:29:43] Speaker 02:
Does it cover every chemical issue that might come to pass?

[00:29:49] Speaker 04:
The consent decrees and the recent consent decree enforcement actions of the agencies

[00:29:56] Speaker 04:
cover all the chemicals, they address all the claims that Green Latito's asserted.

[00:30:04] Speaker 04:
I want to give just one example if I can.

[00:30:08] Speaker 04:
There's a claim, 25, in the citizen suit complaint related to Heater 2101.

[00:30:14] Speaker 04:
And I don't want to, I'm getting into the real details I've encouraged you not to get into, but in response to counsel's argument,

[00:30:26] Speaker 04:
That claim, 25, is the same claim, lock, stock, and barrel, for the claim that was asserted in the 2024 NOV that heater 2101 violated the nitrous oxide standard of the Clean Air Act and of the consent decree.

[00:30:52] Speaker 04:
The agencies in 2024 said we are going to enforce the consent decree by bringing a claim for nitrous oxide emissions relating to heater 2101.

[00:31:03] Speaker 04:
Their claim, 25, asserts the exact same claim for nitrous oxide emissions and

[00:31:11] Speaker 04:
That claim represents 80% of the violation days that they alleged in their whole complaint.

[00:31:19] Speaker 03:
Where in the consent decrees will we find the governmental claims for the violation of this standard for nitrogen oxide emissions?

[00:31:32] Speaker 03:
You will find it in the... I know it's in the 24 NLV, but you're representing that it's also in the consent decree?

[00:31:40] Speaker 03:
Yes.

[00:31:40] Speaker 03:
And it's not a test.

[00:31:45] Speaker 03:
But you're representing that if we scour the consent decrees, we will find the exact same, to follow up on my colleague's question, the exact same standard and the exact same allegation for the exact same chemical, the nitrogen oxide emissions from the same fuel combustion equipment.

[00:32:06] Speaker 04:
I don't want to sit here and say, stand here and say,

[00:32:10] Speaker 04:
with precision, exactly what you just said.

[00:32:12] Speaker 04:
What I can say with precision is that the plaintiffs, the citizens who plaintiffs have said that the consent decree violates, that this Heater 2101 violates the consent decree.

[00:32:26] Speaker 04:
I think there's actually some ambiguity on the consent decree on that point.

[00:32:31] Speaker 04:
But they have alleged that Heater 2101

[00:32:37] Speaker 04:
is in violation of the consent decree on the nitrous oxide standard.

[00:32:41] Speaker 04:
That's their claim 25.

[00:32:42] Speaker 04:
That's what they've said.

[00:32:43] Speaker 04:
And that's the same thing that is the part of the pending 24.

[00:32:53] Speaker 03:
So you're saying that the consent decree, when it created a standard,

[00:32:59] Speaker 03:
the creation of that standard somehow metaphysically morphed into a prosecution of a violation of a standard that didn't even exist until the consent decree was signed by the judge.

[00:33:11] Speaker 03:
A consent decree does two things.

[00:33:14] Speaker 03:
It constitutes the memorialization of a prosecution of a pre-existing violation, and it sets a standard.

[00:33:23] Speaker 03:
And so what you said to me, I'm just not following.

[00:33:27] Speaker 03:
So they can say, Green Latinos can say, yeah, it violated the standard that was created by those consent decrees.

[00:33:35] Speaker 03:
But that doesn't mean that the prosecution of those actions that resulted in a consent decree alleged a violation from the same heaters or boilers for the same standard for nitrogen oxide emissions.

[00:33:51] Speaker 03:
I'm just not following the net efficiency, Your Honor.

[00:33:54] Speaker 04:
What I'm saying, I think, different than what you're saying, Your Honor.

[00:33:57] Speaker 04:
is this is a diligent prosecution bar.

[00:34:01] Speaker 04:
The question is whether the citizen suit plaintiff is bringing anything to the table that's a different standard, a different issue, whatever.

[00:34:11] Speaker 04:
And so what I'm doing, I think slightly different than what you're doing, Your Honor, is I'm saying you need to compare their citizen suit complaint, claim 25, with the 2024

[00:34:23] Speaker 04:
Notice of violation.

[00:34:25] Speaker 04:
And those are identical.

[00:34:27] Speaker 04:
Those are identical.

[00:34:29] Speaker 04:
And they represent 80% of the violation days covered by their lawsuit.

[00:34:35] Speaker 04:
So I didn't just pick one that sort of works for us.

[00:34:38] Speaker 04:
It's a big issue.

[00:34:40] Speaker 04:
How the consent decree enforces this, whether the agencies are going to win or lose on the kinds of issues you're talking about,

[00:34:49] Speaker 04:
I'm not prepared to address today, but what I'm saying for the diligent prosecution bar, their claim is exactly the same.

[00:34:59] Speaker 01:
Counsel, there's a lot to unpack here, so bear with me for a moment.

[00:35:03] Speaker 01:
Yes.

[00:35:04] Speaker 01:
You started with the example of claim 25 by saying, I'm going to get into details that I don't think you should get into.

[00:35:12] Speaker 01:
Then a moment ago, you just said, we need to compare claim 25 back to some of the standards in the past as to what has been enforced.

[00:35:22] Speaker 01:
So I think there may be some tension there, but I want to go back to something you said almost at the beginning of your argument.

[00:35:28] Speaker 01:
You said the statute says the same standard or limitation, but of course it doesn't include the word same.

[00:35:35] Speaker 01:
It does not include the word same.

[00:35:36] Speaker 04:
I think everybody implies it, but I agree it does not say that.

[00:35:40] Speaker 01:
But part of the problem I think here, if I understand Green Latino's argument, is the district court says essentially the allegations are identical or substantially similar.

[00:35:51] Speaker 01:
So it got the standard wrong.

[00:35:53] Speaker 01:
And then this whole discussion we just had about a comparison between claims, all of that is absent in the district court order.

[00:36:01] Speaker 01:
The parties, as I understand it, went to some length in the motion to dismiss in Exhibit 4 to actually have a chart and say, here are the claims and the response, green Latinos,

[00:36:15] Speaker 01:
reasonably added their own column and said, well, here's how we would do that comparison.

[00:36:20] Speaker 01:
So the parties are doing a lot of work here to compare.

[00:36:22] Speaker 01:
The district court did none of that, but yet I think arguably applied the wrong standard.

[00:36:30] Speaker 01:
So that's where I think we are.

[00:36:31] Speaker 01:
But what is your position as to whether we should do the hard work of comparison, whether we should remand to the district court to do the hard work of comparison, or whether none of that needs to be done?

[00:36:44] Speaker 04:
I've got a couple answers, but I'll start there.

[00:36:46] Speaker 04:
None of that needs to be done.

[00:36:48] Speaker 04:
That's my short answer.

[00:36:49] Speaker 04:
The slightly longer answer, Your Honor, is exhibit four, is that work?

[00:36:56] Speaker 04:
The judge cited exhibit four.

[00:36:58] Speaker 04:
He didn't go through, and on line seven you have this, and he didn't go through a point by point.

[00:37:05] Speaker 04:
But he cited exhibit four.

[00:37:07] Speaker 04:
And so I think it's fair for this court to say he reviewed it.

[00:37:11] Speaker 04:
reached his conclusion based at least in part on exhibit four.

[00:37:17] Speaker 04:
I think that the dialogue that counsel had about the claim she picked 21 and I had about claim 25 is exactly why this court needs to defer.

[00:37:31] Speaker 04:
I don't think that you should get into those level of details.

[00:37:38] Speaker 04:
If you conclude

[00:37:39] Speaker 04:
that notwithstanding the discretion afforded the agencies, you want to dig into it.

[00:37:45] Speaker 04:
I wanted to bring to your attention a claim that is very different than the one she picked.

[00:37:50] Speaker 04:
But to answer your question, I don't think you need to do that.

[00:37:54] Speaker 04:
I think under various cases, friends in Milwaukee and others, the boundary of discretion is collusion or bad faith.

[00:38:07] Speaker 04:
The cases which say I don't find diligence here typically say there's something going on that leads me to think there's collusion or bad faith and the agencies just weren't acting in good faith, if you will.

[00:38:22] Speaker 04:
There's no allegation that that's going on here.

[00:38:25] Speaker 04:
And so here, again, to answer your question, I think that the discretion afforded to the agencies, the deference afforded to the agencies makes clear you don't need to do, and in fact shouldn't do, the detailed look of that Exhibit 4.

[00:38:43] Speaker 04:
If you want to, we've given you Exhibit 4 to show that overlap.

[00:38:48] Speaker 04:
Answer your question.

[00:38:48] Speaker 04:
I don't think you need to.

[00:38:52] Speaker 01:
Also, we have here a citizen suit brought against you, but there's another party we haven't heard from.

[00:38:59] Speaker 01:
Of course, we're talking about a diligent prosecution brought on behalf of the agency and or the state.

[00:39:05] Speaker 01:
Do you have a position as to whether or not it would be beneficial for our disposition in this case to invite, particularly the United States, to weigh in on this question?

[00:39:18] Speaker 04:
I guess I don't have it.

[00:39:19] Speaker 04:
If you feel that that would be helpful, we certainly are not opposed to it.

[00:39:23] Speaker 04:
I think you can make a decision on diligent prosecution on the record before you.

[00:39:29] Speaker 04:
I would make one follow-up point to that, that they don't even really argue, and I would point you to their reply brief, I think it's page 25, that there hasn't

[00:39:43] Speaker 04:
the record doesn't indicate a lack of diligent prosecution.

[00:39:47] Speaker 04:
What they say is, this is a motion to dismiss, we've alleged non-diligent prosecution, and so in a Rule 12 context, you've got to take that as a given.

[00:39:58] Speaker 04:
Our response to that is that's a legal conclusion.

[00:40:01] Speaker 04:
You have to assume facts, but you've got a record of regulatory action.

[00:40:06] Speaker 04:
And I don't think you have to, 12b6 does not require you to accept their legal conclusions at face value when the record in front of you, I think, demonstrates diligent prosecution.

[00:40:20] Speaker 04:
If I can have 15 more seconds, I've been read for a while.

[00:40:24] Speaker 03:
Well, do you have any more questions?

[00:40:28] Speaker 03:
Judge Kelly, do you have any more questions?

[00:40:31] Speaker 03:
You can have 15 seconds.

[00:40:33] Speaker 03:
Thank you.

[00:40:34] Speaker 04:
I want to end with a quote from Galtney, the US Supreme Court case.

[00:40:37] Speaker 04:
If citizens could file suit in order to seek civil penalties that the administrator chose to forgo, the administrator's discretion to enforce the act

[00:40:46] Speaker 04:
in the public interest would be curtailed considerably.

[00:40:50] Speaker 04:
That's exactly why we believe this court should defer to the expertise of the agencies.

[00:40:56] Speaker 04:
Thank you very much.

[00:40:57] Speaker 03:
Thank you.

[00:40:59] Speaker 03:
Okay, we'll hear from the appellant.

[00:41:00] Speaker 03:
I think you have two minutes and 35 minutes.

[00:41:18] Speaker 00:
All right, thank you.

[00:41:18] Speaker 00:
I think I'm going to try and make five quick points.

[00:41:21] Speaker 00:
So first, I want to start with where opposing counsel left off with Waltney.

[00:41:26] Speaker 00:
I think it's defendant's sort of favorite.

[00:41:29] Speaker 00:
The thing to do is to try and use that dicta as a blunt instrument.

[00:41:33] Speaker 00:
And this court in the Continental Carbon case rejected the idea that you would do so to overcome the plain statutory text.

[00:41:40] Speaker 00:
So I think at step one and step two, where I didn't hear a textual argument from opposing counsel, that's sort of irrelevant.

[00:41:46] Speaker 00:
The second thing I'll say is about Carr and the discussion that you just had about that case.

[00:41:53] Speaker 00:
Judge Bacharach, I think you're exactly right that the position Suncourt takes is an overreading of Carr.

[00:41:59] Speaker 00:
for at least two reasons.

[00:42:01] Speaker 00:
First, Carr expressly reserves, I think, our step two point at page 1199, where it says plaintiffs in that case didn't preserve an argument before the district court that there was a distinction of the claims at issue and so it wasn't going to address it.

[00:42:14] Speaker 00:
Second, plaintiffs in that case conceded even as to this discussion about the number of sites at issue that the government's consent decree covered all the sites that they wanted to cover, so any discussion of a mismatch there would have been dicta in CAR.

[00:42:27] Speaker 00:
Next, I want to talk about this idea of deference and maybe just say

[00:42:34] Speaker 00:
the kind of extraordinary breath of what I heard opposing counsel to say.

[00:42:37] Speaker 00:
So I heard him to say the reason the 2024 document that they focus on so heavily covers the same claims is because it's NSPS regulations.

[00:42:48] Speaker 00:
It's the same pollutant.

[00:42:50] Speaker 00:
Just think about the implications of that argument.

[00:42:52] Speaker 00:
This is a huge refinery.

[00:42:54] Speaker 00:
The NSPS regulations contain

[00:42:58] Speaker 00:
requirements for specific sources, specific pollutants at each of those sources.

[00:43:03] Speaker 00:
And there's just hundreds of regulations.

[00:43:05] Speaker 00:
And I take Suncor to be arguing one suit about one of those regulations essentially insulates a refinery like Suncor from a citizen suit for all time.

[00:43:14] Speaker 00:
And that just can't be the rule.

[00:43:16] Speaker 00:
It's not the statute that Congress wrote.

[00:43:19] Speaker 00:
Next, I want to talk about

[00:43:20] Speaker 00:
the stipulated penalties because opposing counsel mentioned them, and I think they're actually quite helpful to us.

[00:43:25] Speaker 00:
So I want to go back to Claim 21 that I was discussing and just give you two record citations.

[00:43:30] Speaker 00:
So first, if you look at the 2023 compliance advisory at Appendix 1818, you will see that when it discusses a violation of the standard in Claim 21, it does not cite that standard as coming from the consent decree.

[00:43:44] Speaker 00:
That's in contrast to other standards discussed in that document.

[00:43:48] Speaker 00:
And then I think it would be helpful for you to compare Appendix 1587, which is from the 2020 compliance order, with Appendix 1641.

[00:43:58] Speaker 00:
And the comparison there is that that document notes a violation at the first page, imposes stipulated penalties at the second page, and does not impose stipulated penalties for the violation of the Standard and Claim 21, which I think is evidence that not even the government considers

[00:44:16] Speaker 00:
claim 21 to be connected in any way to the consent decrees.

[00:44:21] Speaker 00:
So I just want to end, if I can, by addressing this idea of how to resolve the case.

[00:44:30] Speaker 00:
I think, as I mentioned at the very beginning, it's really important for this court to identify the correct standard at step two, the same standard.

[00:44:39] Speaker 00:
But I think there's a weird way in which we might agree with something opposing counsel said, which is that you don't need to get into any of this, because any standard that would pass that test would mean that the government has been trying to get SunCorp to comply with that standard since the early 2000s.

[00:44:56] Speaker 00:
and failing.

[00:44:57] Speaker 00:
And we think at that point, it's just the furthest case on the spectrum for diligence.

[00:45:03] Speaker 00:
And cases like Friends of Milwaukee Rivers, cases like Sabaya, which I refer to as Prasa, and cases like Jones say, that's just not diligent.

[00:45:12] Speaker 00:
So we'd ask the court to reverse on that basis, or at a minimum, to remand for the step two discussion.

[00:45:18] Speaker 00:
Thank you.

[00:45:20] Speaker 03:
Judge Kelly, do you have any questions for counsel?

[00:45:23] Speaker 02:
I do not.

[00:45:24] Speaker 03:
OK.

[00:45:25] Speaker 03:
Thank you.

[00:45:25] Speaker 03:
This matter will be submitted.

[00:45:27] Speaker 03:
I do want to take a moment to thank both counsel.

[00:45:30] Speaker 03:
I thought your briefs for both sides and your arguments were absolutely outstanding.