Mr. Waxman?

Mr.

Chief Justice, and may it please the Court, just to clarify one thing.

The statutory standard in Alabama for prong one is substantially sub-average intellectual functioning.

Now, courts sometimes use the term, and properly so, true IQ of 70 or below, but every court in Alabama and this court and every other court in every other state that I am aware of understands that raw observed test scores is not the definition of true IQ.

Now, in deciding whether a defendant has carried his burden To prove that he suffers from substantially sub-average intellectual functioning, Alabama law, like that of nearly all other states, all other states with the qualified, sometimes exception of Oklahoma, requires courts to evaluate all provident evidence as to intellectual functioning offered by either side.

That includes evidence of intellectual functioning other than IQ test scores, at least where a court, considering expert testimony, concludes that those scores alone don't decide the issue.

And then the Court is deciding.

you, Counsel.

Mr. Waxman? Mr.

Chief Justice, and may it please the Court, the core objective of Section 307B, is to avoid inconsistent rules arising from duplicative litigation in the administration of the Clean Air Act.

Yet under the ruling below, eight different courts of appeals will be passing on the merits of EPA's standards for eligibility under the small refinery exemption, producing, as is already evident from the two circuits that have opined, different substantive standards, completely the opposite of what Congress manifestly intended under the national RFS program.

Now, there's been a lot of discussion about prongs one and three, and maybe some discussion without identifying it as prong two, which is the locally or regionally applicable.

As to prong three, we fully agree with EPA that if the actions are deemed locally applicable, The disposition of each refinery's petition was indeed based on a determination of nationwide scope and effect.

I have some different answers to some of the questions posed in particular by Justice Gorsuch and Justice Alito, which I hope I'll get to.

So then how do we ever have a local determination in that scheme?