Legal Case Summary

. But your reply brief seems to turn off 180 degrees from that. And let me sort that out. And I recognize Your Honor that having six opening briefs isn't the most effective or most helpful way to the court to present our position. So let me express on behalf of all the private petitioners, there are two arguments. Our principal argument, and the one I would like to focus on the most, is that greenhouse gases are not included within the PSD program at all. They can't trigger its applicability and they wouldn't be subject to the best available control technology determination. But again, that's because they're not local. Because they don't have area specific air quality impacts. Yes. What do you make of the endangerment finding that greenhouse gases have severe effects at the local level that I think the endangerment finding is not before us today? The endangerment finding is that they exacerbate ground level ozone and small. Certainly every effect that any environmental phenomena has on the planet and on people will at some point be felt in some local area. Our point is that that is not the kind of measurable area specific, regionally defined air quality impact at the PSD statute. Certainly not measurable. The agency doesn't even assert that it's measurable, right? That's right. And maybe it would help if I specifically identified there are three features of the PSD. Well, I'm sorry. Before you do that, we have an outstanding question from the Justice Sotomayor, maybe. Thank you very much, Mr. Chief Justice. The problem is not simply that the agency rewrote the thresholds and said that it will eventually try, as it did say, to get down to the level of the statutory thresholds. Because the reason that Congress wrote those thresholds was because it wanted to exempt small entities from the costs and burdens of the permitting process. And so when EPA says that it hopes eventually to get down to the apartment buildings and large high schools that would be covered if those thresholds were applied to carbon dioxide, it is contravening congressional intent in another way. I didn't read them as saying that anyway. I read them as saying they'll try to do it, but make whatever exemptions are necessary. Well, and the problem is just a school that those exemptions violate the statute as well. The exemptions they're talking about in order to deal with the small entities that Congress meant to exclude would be to have general permits by category. And the statute specifically says that these determinations are to be case by case followed by an individualized hearing. And so it clearly is not a matter of the EPA simply saying we can't do it right away, but we're going to do it eventually. That's right. And it hasn't, and if they did say that, they would be violating the statute in worse ways. They would be treating a command by Congress not to regulate small entities into a command to regulate small entities. Mr. Kaisler, do you really mean to say that the only difference between greenhouse gases and the air pollutants that Congress clearly had in mind when it enacted the Clean Air Act is that greenhouse gases don't have a localized effect. Isn't there also a big difference in that the quantity of greenhouse gases that are emitted by sources are much greater than the quantity of these other pollutants? And that's why there's this discrepancy between the statutory threshold and the threshold that EPA has. That's right, Soutood. That's right, Your Honor. And I think there are really two parallel problems that we're dealing with each which creates its own need for the EPA to violate the statute in order to save it for greenhouse gases. One is the one that your Honor and Justice Sotomayor referring to, which is this was a statute designed for case by case permitting of a small number of large sources that materially contribute to the problem. And whether you rewrite the thresholds or promise to regulate down to the infinitesimal level, you are violating that aspect of the statute. But the other aspect of the statute, which is equally violated here, is the requirement that this particular program, not the other programs in the act, but this particular program be focused on these area-specific air quality impacts

. And there are three features, the three central features of the PSD statute, which we think showed that. The first is Section 7471, which is, I think, on page 13 A of the appendix to the government spreefe. And that is the provision that specifies what the PSD program applies to and also explains what PSD prevention of significant deterioration refers to. And 7471 says the program consists of emissions limitations and other measures as may be necessary to prevent significant deterioration of air quality in each region that bears certain designations. And air quality in each region is clean air act language for that subset of air pollution problems that have regionally defined effects on the air that people breathe. How does the, this differ? I mean, there are many statutes, I believe, particularly in the regulatory area, where Congress passes a statute that tells the agency to ABC and D. And then it turns out, since there are so many of the regulated things, that it just doesn't make sense to apply ABC and D to all of them. So often, I would think courts read in an exception, where it makes no sense. For example, if there were a statute that said you have to throw out all bubblegum, it's been around for more than a month. Well, what about bubblegum used in a display case that nobody ever intends to eat? You say? And so what we do all the time is we say, well, it doesn't mean to apply to that. Now, why can't we take the same approach or EPA takes the same approach here? It says 250 tons or more, and we apply that all over the place except it doesn't make sense here. So we read an exception into it, unwritten, for places where it makes no sense. I don't know that there actually is a press into this Court, which says the agency can do precisely what it did here, which has taken express command that identifies the thresholds that didn't delegate to the agency, the determination of the thresholds, but says. But I'm a little confused because there have to be pollutants where it doesn't emit just 250, where it admits a million. And the best available control technology won't get it down to below 250. Yet the PSD program is in effect when they get down below 250 on any pollutant of the six criteria. So it can't be your view that this statute was written only to get to measurable pollutants that are at 250 or can be brought below 250. Well, that's right, John. It's not our position that the purpose of best available control technology is to bring facilities down to below the 250 level. It's our position that the statute sets that 250 ton per year level as the trigger, that a facility which emits, has a potential to emit that or more is a subcutter. It's a minimum, but anything above it. That's right. And it's so, and then the best available control technology. GHG is something that's above that, and it's never going to be brought down below it. That's right, but it's above it for millions of entities that Congress intended to exempt from the permitting process. And I'll like to just continue. Mr. Schroeder, if I could follow up really on Justice Breyer's question, because the conundrum here, you keep saying, look, EPA is violating this specific statutory term. But the conundrum that this case raises is that everybody is violating a statutory term. EPA is saying, no, we can't do the 100 to 50 with respect to greenhouse gases. But you're also violating a statutory term. You know, it says any pollutant, or it says in the other provision, each pollutant subject to regulation, nobody would think that the most natural, most reasonable readings of those phrases are any pollutant if they have localized effects, but not otherwise. So, I mean, what's happened here is that you have this new kind of emission that basically makes these two terms of the statute irreconcilable. And the agency has essentially picked one. It said, look, we're not going to just exempt a broad class of pollutants. Instead, we're going to fudge the numbers. And why isn't that the more reasonable of the two things to do? Because we don't agree, Your Honor, that those two, that those two horns of the dilemma that your Honor described are equally situated. Certainly, 102 and 150 tons per year is a clear and unambiguous congressional command. The question of how to interpret the phrase air pollutant is that is an issue that is subject to interpretation. And if I could just then, I don't really understand that

. I mean, it's true that one is a number, but the other, each pollutant subject to regulation, or any air pollutant, what the EPA has done is for 30 years across presidential administrations, treated those phrases as meeting a single thing, which I think if you put aside the absurdity problem in this case, everybody would agree is the most reasonable interpretation of those phrases. And you're saying the EPA should junk that most reasonable interpretation of those phrases because there's a new kind of a middic, a middic chemical or whatever, that makes the numbers not work. No, no, let me, it goes much beyond the numbers, Justice Kagan. I think if anybody were looking at the PSD statute and isolation without the benefit of Massachusetts versus EPA, assume that the word pollutant was an undefined term. And the question was, what pollutants does this provision of the Clean Act refer to? They would conclude that it refers to pollutants only that have those area-specific air quality impact. And it's not only that the prevention of significant deterioration referred to in the statute is the deterioration of air quality in each region. It is also two other features of that statute, which we think make that unambiguously clear. The first is Section 7475E, which can be found on pages 27A to 29A, I think, of the government statutory appendix. And that mandates the one analysis that has to be conducted in every permitting process. And the one analysis that Congress has required be available to public hearing. And that is an analysis of the air quality and local conditions at the site of the facility and each area that is going to be affected by the conditions. Councillor, you began that discussion by saying putting Massachusetts versus EPA to one side. But I was in the dissent in that case, but we still can't do that. No, that's right, Your Honor. And I think it is all my- The question is along with that, that's the next thing. Assume, and it's the case that we're bound by both the result and the reasoning of Massachusetts and EPA and the American Electric versus Connecticut case. Under your view of what regulatory force, what regulatory significance do those cases have under A, your approach and B, the approach by the Chamber of Commerce and the Blue Brief. I think that may be consistent with the subject, the Chief Justice, just open. Sure. Let me begin with Massachusetts versus EPA, and then I'll turn to AP versus Connecticut. Massachusetts versus EPA did not hold that the interpretation of pollutant in that opinion had to be applied every time the word pollutant appears in the Clean Air Act. The same day that Massachusetts came out, this court decided environmental defense versus Duke, in which it specifically said that even when a defined term in the statutory definition provision is construed a particular way, that doesn't mean that that same term used elsewhere in the statute can't be construed differently where context requires, and the Court reversed the fourth circuit for holding that they had to be the same. And that's why in Massachusetts, after indeed holding that the definition of pollutant unambiguously in its literal sense included greenhouse gases, the Court didn't stop there. It went on to ask whether applying that definition to the title to provisions on motor vehicles that were an issue in that case would produce what the Court called extreme measures or counterintuitive results. And only after finding that there'd be no extreme or counterintuitive results, did the Court direct the EPA to apply that definition to those title to provisions. And I think what that reflected was that the Court understood that the literal definition of pollutant was sufficiently broad that it shouldn't be mechanically applied, plugged in everywhere in the act that the word pollutant appears without some additional analysis of the context of those provisions. What else does it cover other than title to other than mobile vehicles? There are multiple places in which the word pollutant appears in the act, in which the EPA has understood MassPhe EPA the way I just described in which they have interpreted the words any air pollutant to mean only a subset of the pollutants that that's the definition literally could be. That's generally because the section that it's in gives a different definition directly. No, no, that's with respect to honor, that's not correct. So for example, in the PST and Title V provisions, it says any air pollutant. The EPA has interpreted that to mean any regulated air pollutant, not because of any separate definition, but because of context, the context suggests otherwise. Same thing with the provision on visibility and pairing. But your answer is that they can be treated differently under different parts of the act. Doesn't that contradict your earlier view that we can't change the statute? No, I don't think so, Your Honor, because it was an active interpretation in Massachusetts versus EPA of a particular term. And the question is reading that decision as a whole, what import did the court give that interpretation? It would not have needed to go on and say, let's look at specifically the Title II provisions that issue here and ask whether it will produce extremer, counterintuitive measures. If it weren't the case that that was an additional part of the inquiry that was necessary. And what other programs I asked earlier? Is it so we have the mobile vehicles? What else? You're saying it excludes PSD? What else does it include? I think most critically, Your Honor, it includes the new source performance standards program of section 111 that this court discussed in Connecticut versus AEP. And this is a very important point because this case is not about whether EPA can regulate greenhouse gases from stationary sources. This court held that it could under this program in section 11. This is about whether state and local permitting authorities, the 90 plus state and local permitting authorities, are supposed to regulate plant by plant under this particular PSD program

. And I mentioned the NSPS program because the features of that program highlight what's wrong here because the NSPS program doesn't contain the elements of the PSD program that require the PSD program to be rewritten in so many particulars to make greenhouse gases fit. NSPS doesn't have the 100 and 250 ton per year thresholds. It lets EPA by notice and comment rulemaking decide what categories of sources are most contributing to the problem and most require regulation. It doesn't require the area-specific local impact analysis of subsection E of 7475, which EPA has told state and local permitting authorities, even though it's mandatory, don't conduct it because it can't be done for greenhouse gases. NSPS permits the EPA to look at reducing the national footprint without regard to area-specific impacts. And it permits the EPA to do this through a national uniform emission standard that the plants can then determine how best to meet, rather than asking 90 state and local permitting authorities, which is what PSD is about to decide plant by plant what they think each plant in their jurisdiction should do about bloating. Sotomayor So in your opinion, is I'm not sure what statutory site is to the provision you're talking about, is it 7411? That's right, Your Honor. So you're saying they could do 7411A and B to get to just the same place they are today? Yes, without regard to the right. You don't see an objection, there must be some reason they didn't do that. Well, they are doing it, Your Honor. They are doing it. Well, then I don't know what this case is about. I mean, it's a question of whether they do exactly the same thing under one provision or another provision. And you agree with them that they could do it under the other one, and we'd end up at exactly the same place. But it's not exactly the same thing, Your Honor. And it is the difference between having the EPA through notice and comment rulemaking establish a national emission standards, and then the plants can deal with that incentive system in the best way they can and figure out how to meet it. Versus this command and control PSD mechanism, where 90 plus state and local permitting authorities are each having to decide on their own what controls they think each plant in their area should engage in in order to deal with global warming. It makes perfect sense to have 90 state and local permitting authorities addressing the area-specific air quality impacts of plants that are built in their states. It says such standards with such modifications as he deems appropriate. That's the language of 7411b. So if this is the right program, why couldn't they copy it word for word into the rules and just put a different section number at the bottom? I know you'd have a preferred way to do it, but if they disagreed with you and they think this is the perfect program, why can't they do it? Because the statutory language and structure of the PSD program does not, we think, encompass these kinds of pollutants that have globally dispersed results and not area-specific impacts. And it's for the reasons that I've indicated. 7411, which says, I'm sorry, 7471, which says that the prevention of significant deterioration is focused on deterioration of air quality in each region. The study required by 7475E, which is of local conditions. And the fact that this is assigned to 90 state and local permitting authorities. That your second point, I'm keeping a list here of points you have not been permitted to get to. One, you were going to discuss not just the Massachusetts case, but the follow-on case to Massachusetts. Oh, well, Connecticut. Well, Connecticut versus AEP. And the only point to make about that is that that was the case which held that the commission, that the EPA has authority under Section 111, the NSPS provision, to address greenhouse gases, without having to rewrite thresholds by designating the categories of sources like it's trying to do here. But it has to do it by national emission standards through notice and comment rulemaking. Connecticut versus AEP certainly did not approve the PSD provisions. He certainly did not approve the regulations rewriting the statutory thresholds that the EPA had to promulgate. The other thing you were going to give two points, and you only got to, what is it, 7411E? There was another point. Is it, there are really three features I mentioned of the PSD statute, which we think make the context. Gutt, first, which was the year of the year of the year. Which was 7471, prevention of significant deterioration. The second was that study that the only required study is of local conditions and area specific impacts. And the third is just that this is assigned to 90 state and local permitting authorities, which is not, it is not plausible to think that with respect not to these area specific impacts, but to a global problem like global warming, that what Congress was doing was saying, we think 90 state and local permitting authorities should make those decisions rather than perhaps EPA on the national. Just to be clear, your reading would say that the agency was now permitted with notice an opportunity to be heard, to say, to make a criteria, and make this a criteria pollution in the AAAQS

. If the agency had tried to establish a NAACS for greenhouse gases, we think that would be contrary to the statute, because the national ambient air quality standards are all about regional concentrations. Is this area in or out of compliance? If the gas goes up to the atmosphere and is mixed there, the whole country is going to be in attainment, or the whole country is going to be out of attainment, it doesn't work at all with the NAACS structure. And if I could reserve it. Well, why don't you take an extra five minutes? And it can begin by answering the question, you know, the government disaggregates the discussion. And their first point in their brief is that greenhouse gases can be regulated with respect to sources that are already covered by the PSD program. That position does not implicate your concern about the broad reach of EPA regulation. Does it? I think it does, Your Honor, because while that might deal with the specific issue of rewriting the thresholds, the fact that the PSD is going to be in a state of emergency, the PSD provisions for the reasons I have indicated is limited to area-specific air quality impacts, would we think be violated merely by applying best available control technology to a global, globally dispersed substance like greenhouse gases? And I understand, but they would only be applying that with respect to sources that are already required to operate under PSD permits. That's right, but they would be applying it to a substance greenhouse gases, which the PSD program was not designed to address, which was designed to be addressed by other programs. And I would say, Your Honor, that while they have tried to separate those issues out, that there's one issue about who has to get a permit and the other issues about whether the requirements of best available control technology apply, the regulation that they have adopted to implement what they call their tailoring rule applies equally to both. What they've done is say that the words subject to regulation, which are the words in the back to provision, shall only apply to greenhouse gases, even when they're regulated, if you're emitting them at levels of 100,000 tons per year per more. When they did that, they both rewrote the provision that says who has to get a permit and they rewrote the provision that says what best available control technology applies to. They did both at once, even though their brief treats it as separate. And if I'm not certain how much time I have, Mr. Chief Justice, if I have- Not including rebuttal? No, you'll get five minutes of rebuttal. Thank you, Your Honor. If I could then turn briefly to the second argument that I made reference to at the very beginning, which is an argument that need not be addressed if the Court is persuaded by what I've just said. But if not, we have a second-nower argument, which is in the American Chemistry Council brief, which addresses the requirements for triggering the PSD statute. And our position on that is very much like Judge Kavanaugh's position below, which is that the statute is triggered only by emissions of major amounts of a pollutant for which the area is in attainment. Well, that's not Judge Kavanaugh's position. I thought Judge Kavanaugh's position is any next pollutant or next. That's right, Your Honor, and that is a distinction. Our position is similar, but not identical to his position. And it comes from a different portion of the statutory language. That's right. We are focused on language in any area to which this part applies. And that's because part C, the PSD provision applies not to an area as a whole. But for some pollutants and not for others in any particular area. Could you please ask, Mr. Kavanaugh, why Judge Kavanaugh's argument has been left by the wayside? It is very similar, Your Honor, to the argument that we are making, but we get at it in a different way and in a slightly different result. Well, it does. It comes from different statutory language. His argument about the structure of the statute don't apply to your argument. So I think notwithstanding that there's some overlap between the arguments, the legal rationales are entirely different. And I guess I'm just curious. This is the argument we made below, and it's the argument we've continued to make here. And the point of the argument. I think that answers the question. Excuse me, Your Honor. I don't think it answers the question, which is, I know that's the argument. Are you saying you can't defend this argument? I can't enter you saying that

. No, it's just that it's been hard enough to make two alternative arguments in this form. And to add a third to it would be more than I think I could have. Can you clarify about, we have the next criteria. The EPA has added many others, of course, the years. For 30 years it's been adding things for which there are no next. What about all of those? Your Honor, it is true that ever since 1980, although it proposed our interpretation as its original interpretation of the statute, ever since 1980, EPA has said that any pollutant, whether it's a natural pollutant, whether it's a pollutant for which the area is entainment, any pollutant would be sufficient to trigger PSD permit requirements. But that has had virtually no practical effect, because all of those other pollutants, if they are emitted in threshold quantities invariably, we've been able to find about two or three exceptions over 30 years. Invariably, the facility that is emitting them is also emitting 250 tons per year of one of their criteria pollutants. So this was a difference which made no difference until greenhouse gases came onto the scene. And with the Court's permission, I'll reserve the remainder of my question. Thank you, Council. General Mitchell. Mr. Chief Justice, and may I please the Court? There are at least two issues in this case in which EPA and the petitioners agree. The first is that the term air pollutant cannot be given a uniform construction throughout the Clean Air Act, even after this Court's ruling in Massachusetts that air pollutant includes all things airborne for purposes of Title II. The second point of agreement is that greenhouse gases cannot be treated the same as other air pollutants for purposes of the PSD and Title V programs, because the unambiguous statutory requirements of those programs are incompatible with sensible regulation of greenhouse gases. EPA thinks it can fix this problem by imposing an A-textual agency created regime that applies only to greenhouse gases. The proper response, however, is for EPA to conclude that Congress never delegated regulatory authority over greenhouse gases in the PSD and Title V programs. Congress does not establish round holes for square pegs, and Brown and Williamson holds in these situations. An agency cannot make a round hole square by rewriting unambiguous statutory language. General, I take it that the unambiguous statutory language that you're referring to is the references to 100 and 250. And it seems to me that that's an odd kind of term to drive such an important statutory interpretation question. Because what those numbers were all about is that they were supposed to separate major emitters from minor emitters. I mean, they were supposed to be about the size of the facility. They were not supposed to have, they were not supposed to make any distinctions as to the type of pollutant. So you're essentially using those numbers to make distinctions as to the type of pollutant. Rather than, it seems to me a more sensible approach would be to say, look, the 100 and 250 numbers don't work for this new kind of pollutant. We're going up the numbers, and that will leave the rest of the statute and all the purposes of Congress intact. Justice Kagan, the reason we don't think the approach that you describe as permissible is because there are statutory provisions in the Clean Air Act that specifically forbid EPA to do what your honor is describing. 7661AA says that EPA cannot, under any circumstance, exempt any major source from the Title V requirements. And because that provision is in the statute, EPA cannot be claiming to seize discretion when Congress has specifically withheld that type of discretion here. This is akin to a dispensing power for EPA to be coming in and rewriting the Title V permitting thresholds in the way that they are. And the question to ask is whether the term air pollutant is flexible enough to accommodate different meanings in different statutory contexts. And here, even EPA agrees with us that air pollutant can mean different things in different parts of the act, even after Massachusetts. Massachusetts held that air pollutant unambiguously includes all things airborne, all airborne compounds of whatever stripe, for purposes of Title II. But EPA has refused to carry over that definition throughout the Clean Air Act when the term air pollutant appears in at least three different places. One of them is Section 7411A4, which is part of the NSPS program. In that provision, the term air pollutant appears as part of the definition of modification. EPA does not interpret that to mean all things airborne. It doesn't even interpret that to mean all regulated air pollutants

. It interprets that to mean air pollutants for which a standard of performance has been established. In the PSD and Title V permitting thresholds, EPA interprets the phrase any air pollutant, not to mean all things airborne, but to mean any regulated air pollutant. And then finally, in Section 7491, EPA interprets the phrase any pollutant to mean any visibility impairing pollutant. So if Massachusetts is all things airborne view of the phrase air pollutant is forced to be applied to every provision of the Clean Air Act where the word air pollutant appears. All of these longstanding EPA interpretations would have to be discarded. But, General, if you think about the question of what any pollutant means, and you put aside this whole absurdity question that the numbers get you to, you just say what is any air pollutant mean? Does it mean what EPA has said it has meant for 30 years, which is any pollutant that's regulated under this act, or does it mean something more along the lines of your saying, which is anything other than greenhouse gases or anything else? And other than pollutants that have particular localized effects, you would obviously choose EPA's version of the thing. And the only reason that you're not choosing that is because of these numbers that are in the statute, which were designed only, only to distinguish between major and minor emitters. So if you can distinguish between major and minor emitters while keeping the completely sensible longstanding interpretation of any pollutant, why wouldn't you do that? Because I don't think it can be said, Justice Kagan, that the phrase any air pollutant unambiguously means any regulated pollutant. That is a possible interpretation of air pollutant. But there are others. And EPA has adopted other definitions, depending on the surrounding time. Let me ask you a question. Assuming we agree with you that neither Massachusetts or Alabama, there's no statutory command to come to EPA's conclusion. What do we do? Do we just reverse them, or do we vacate and remand and tell them, no, you were wrong at step one? There is ambiguity in the statute. It's more than just that there's ambiguity, Justice Sotomayor. We're asking the Court to hold that a greenhouse gas inclusive interpretation of air pollutant simply does not fit with the unambiguous provisions of the PSD and Title V programs, just as a tobacco inclusive or nicotine inclusive interpretation of the word drug was not able to fit with the unambiguously requirements of the statute. I think, where Justice Kagan was going, and I will if you wasn't, but I think she was, is put the definition from 74.79 in your mind. That means something to you, right? You know what I'm talking about. The definition of the major emitting facility. Now, we look at 74.75, and it says, you have to have a permit and use best available control technology for what? Then we go to the definition, and it says, among other things, for any source with the potential to an emit 250 tons per year or more of any pollute. Now, that doesn't, my God, that maybe means every 500 people, every school is applied here. So you say, we got to use something about this statute, because they don't really mean to every football game they're going to have a permit, or it doesn't mean every 500 people, like all my relatives are together, they have to have a permit. No, it can't mean that. So we have two choices. Choice A, which is what you would like, is it means any air pollutant, any regulated air pollutant, but not greenhouse gases? Okay, that's choice what? Choice 2, is it means any air pollutant, including greenhouse gases, but implicitly EPA has the authority to exempt small emitters. Is that? Now, which does the less violence to the statute? Choice 1, and the reason- I knew you would say that. The reason choice 1 does less violence is because the term air pollutant is flexible and has been acknowledged to be by EPA for decades, and I think even by this Court, notwithstanding its holding in Massachusetts, it's permissible for an agency to construe ambiguous statutory language to avoid absurdity. In fact, it must construe the ambiguous language to avoid absurdity before taking choice 2 that you're honored to describe, or it rewrites unambiguous statutory language to avoid absurdity. If the simple choice were between consturing 1, unambiguous statutory provision to avoid the anomalous results, and consturing another unambiguous statutory provision to avoid that outcome, then EPA would have a much stronger case for deference here. The problem for EPA is they've insisted for decades that air pollutant can mean different things in different parts- to modify my question, I get that answer on the language there, but if you had been sitting in Congress in the Senate, Mr. Billings, I think, was the staff person, Senator Muskie, and suppose that you had this choice put you with your language, we'd either like to have the authority implicit here to exempt the football team that tiny emitters, or we'd like it not to cover it at all, which you think the Senate would have chosen in enacting this bill, from the evidence in the language itself and the evidence which I look at, the history of the bill. I think they did make a choice, and it's in the language of the bill, that EPA does not have the authority to exempt any major source from Title 5. They say that right there in Section 7061AA on page 44 of the statutory appendix in the system. Title 5 is not the PST requirement. Title 5 is just the record-keeping provision. That's true, but EPA. And so why should we exempt people from Title 5? That's not what's causing the burden that you're talking about, it's just a record-keeping provision. But it's a very burdensome record-keeping provision as EPA acknowledges

. That's why they're not willing to impose it on every entity that admits more than a hundred tons per year of carbon dioxide. It costs on average $20,000 to get a Title 5 permit and hundreds of man hours. And it's plausible to impose those burdens, perhaps on large industrial sources, but certainly not to impose that on the corner deli, or the Chinese restaurant of a high school building. So again, to return to Justice Breyer's question, which would Congress have chosen? The choice was made in the statute to establish rigid numerical permitting thresholds that were defined not only by 100 tons and 250 tons per year, but also defined by a specific metric and to withhold from the agency the discretion to depart from those unambiguous requirements. Instead, they provided looseness to the extent they provided it in the definition of air pollutant, which even though this court held in Massachusetts, unambiguously includes all things airborne for purposes of Title 2. So EPA has narrowed that construction in numerous other parts of the state. If you can narrow that one, any air pollutant, including greenhouse gases, to the extent that they can be sensibly controlled under this statute. Now I've worked with the words air pollutant. You see, I can do it any way you want if I'm prepared to read in exceptions. And of course, we do have exceptions when agencies enforce statutes. We do have exceptions from general language all the time. I don't think it would be a permissible act of statutory construction to say that carbon dioxide can be an air pollutant and not an air pollutant at the same time. You'd accept his definition. Wouldn't you be happy with a definition that says air pollutant means any air pollutant. To the extent it can be sensibly controlled under the statute. And you would say this one obviously can't. Right, which means it can't be regulated. That'd be a wonderful definition. It can. No, it can in large-quality quantities. I mean, you don't see anything wrong with large quantities. It's just the small quantities you have a problem with. I'm very saying it doesn't make sense to control major emitters of CO2. We're saying it doesn't make sense to construe air pollutant in a greenhouse gas inclusive manner for purposes of the PSD program because the unambiguous requirements require EPA to reach the small emitters. And if EPA wants to fix the problem, they can't resort to this form of agency self-help. The need to- General one question is what would Congress have wanted given the obvious purposes of the act? And that's an important question. Another question is what did the agency decide here? I mean, obviously this is the apex of Chevron deference. There's nothing that gets more deference than this agency with respect to this complicated statute. And given that this whole thing arises because there's this new kind of emission, which the numbers don't work for, but which essentially makes these two terms in the statute irreconcilable. Why isn't that a classic case for deference to the agency? That the agency gets to choose how to make the thing work as best it can when a changed circumstance makes it work not entirely the way Congress had foretold. I think because the Court rejected that very idea in Verano-Williamson, where tobacco was trying to be regulated by FDA, under a statute where the word drug clearly included nicotine, if you just looked at the definition of drug and isolation, but this Court rejected FDA's assertion of jurisdiction by saying that the unambiguous requirements of the food and drug are being- Except your argument, we have to reverse Massachusetts. No, not at all, Justice Sotomayor. Well, you're saying that Congress didn't intend to control this pollutant. We said there that it did. No. The Court only needs to revisit Massachusetts if it believes that air pollutant must have a uniform, unambiguous construction everywhere it appears in the Clean Air Act. And not even EPA is making bad assertion to this Court. And we've shown throughout how EPA has interpreted air pollutant differently. So there's no need to revisit Massachusetts at all to conclude that at least in the context of the PSD and Title V programs, it's not plausible for the agency to construe the phrase air pollutant to include greenhouse gases. The Court has no further questions

. I yield my time back to the Court. Thank you, General Mitchell. Thank you. General Verily, Mr. Chief Justice and May please the Court. Greenhouse gases pose the same threat to public health and welfare when they are emitted from a power plant as when they are emitted from the tailpipe of a car. And in American electric power, this Court said it was plain that EPA has the authority to prescribe general rules limiting greenhouse gas emissions by stationary sources like power plants. Yet petitioners say EPA lacks any authority to use the PSD permitting program to regulate the same emissions from the same sources causing the same harms. That's not a reasonable reading of the statutory text and it rests on the fundamental misunderstanding of the PSD program and the way it is supposed to operate in conjunction with the rest of the process. Why would it be unreasonable to give EPA authority to regulate mobile sources and not authority to regulate stationary sources, given that stationary sources have to be licensed in this fashion, and it produces all sorts of other problems. It doesn't seem to me irrational at all. Well, the Court said, I think, that it was plain that Congress gave EPA the authority to regulate stationary sources in the American electric power case under Section 7411, and that I think gets to a fundamental premise where the petitioners are just wrong. Section 7411, and the PINs relates to question you asked, Justice Breyer. Section 7411 and the PSD program are not aimed at different problems. They're aimed at the same problem, and you can see that from the statutory text. For example, if one looks at Section 7475A3, which you can find at page 21A of our appendix, you will see that in order to become eligible for a PSD permit, if you're a major emitting facility, you've got to, and look, if you're looking at Subsection 3, under 3A and 3B, you've got to show that you can meet all of the local air quality requirements of the NACS, those standards, and then C says you've got to meet any other applicable emission standard or standard of performance under this chapter. And that standard of performance language is not an accident. On 7411, the standards that are set, the nationwide standards of Mr. Kaiser was discussing for greenhouse gases or other air plumes are called standards of performance, so this specifically picking up the Section 7411 standard. Then if one turns to the definition of best available control technology under the PSD program, which you can find at page 34A of the appendix to our brief, you'll notice that Congress specifically linked the operation of the Section 7411 standards and the best available control technology under the PSD program, and what this provision says, I won't belabor you by reading the lengthy provision, but what it says is that once Congress has set a standard under Section 7411, a nationwide standard, that becomes a floor for the evaluation of the best available control technology. Are you reading Subsection 3, the A, B, and C, and you focus on C any other applicable? Are you reading those in the alternative? I read that all three have to be compiled. Yes, they all three have to be compiled. Yes, Justice. And that doesn't help you because you're right back where you started. You have the tonnage per year requirement. Well, I'd be happy to end with the observed result of the follows. Well, I'll be happy to get to that, but if I could just finish off this point about the connection between the operation of the two, because I do think it's of critical importance here, that what you're supposed to do underbacked is use best available control technology to get above the floor. That the NSPS program sets those standards on every eight-year basis, and the point of back is to force best practices to keep raising the bar during those eight-year intervals. And there's an additional point to be made about the relationship between the two. This goes back to Senator Muskie in 1977. The NSPS program was enacted as part of the 1970 act. The PSD program was added in 1977, and it was added in 1977 because of dissatisfaction over both the pace and the comprehensiveness of the air pollution regulations that were being enacted by EPA under the 74-11 standard. And it's because under 74-11, EPA's got to go one source category at a time. It's got to do power plants, and it's got to do refineries, and it's got to do the next thing, and the next thing, and the next thing. And so EPA hadn't gotten standards in place for all the different sources. And the point of the PSD program is to put in place an additional requirements as exactly what Congress was after, so that when there is a standard under 74-11, that becomes the floor, and back says, let's keep raising the bar. But when there isn't a standard under 74-11, PSD is supposed to fill the breach. And it makes sense because you want to get the PSD program, remember, applies to, excuse me, it applies to new construction or major modification. The idea behind it, if you want to get in there at the beginning when the source is first being constructed so that they don't lock in old pollution-causing technology, they've got to meet best available control technology. I think I have an idea of what that looks like with respect to sources already regulated because they're relating to the NAX filters, scrubbers, and all that

. I'm sure it's oversimplified. But what does best available control technology look like with respect to greenhouse gases? Well, it's an evolving process, Your Honor, and there are now 140 or so permits that have been issued, applying back to greenhouse gas emissions. There's some very helpful discussion of the kinds of specifics in two places. The State Respondents brief, pages 35 to 39, and the CalPine Amicus brief. CalPine is a major utility, regularly. Right, but am I right? Right, because the greenhouse gases do not affect ambient air quality in a way that the current or the NAX provisions do. I mean, you're dealing with regulation of energy usage, right? As opposed to emissions of lead emissions of the other NAX emissions. Well, it's one thing we're doing. The main thing now is significant energy efficiency, for example, different kinds of turbines, different kinds of processes. That sort of thing. The same sort of thing is with, for domestics, as the energy efficient light bulbs. Well, I really don't think this is about light bulbs, Mr. Chief Justice. No, but my point is that it relates to energy consumption as opposed to particulate at the mission, at the moment, that's largely true, not entirely true. There are some other technologies described. But of course, the EPA is considering and scientists are trying to develop additional control technologies like carbon capture technologies. And that's the whole point of best available control technology, as AS technology advances and better options come online that allow for even greater control of the pollutants, the statute requires that they be incorporated. That's how it's supposed to work. If you regulate, I'm talking about your two distinct arguments in your brief. If you prevail on the first, in other words, greenhouse gases may be regulated with respect to sources that are already subject to permitting. Minestand, it gets you to 83 percent of the greenhouse gas. That's correct. Prevailing on the second argument gets you to 86 percent. That's correct. So this is a fight, putting aside your first argument, about an additional 3 percent. And yet, according to the petitioners, that brings in this huge regulatory problem of regulating the high school football game and whatnot. Just an aside on the high school football game. Human beings are actually net neutral on carbon emissions, and you'll need a chemist to explain that to you, but it doesn't matter how many families members you have, you won't get to the limit. But with respect to the question, the lights at the game. The lights at the game, I don't think, would be a problem either, but anyway. There obviously is, in the EPA's acknowledged, that there's a significant expansion of the permitting obligation under EPA's present understanding of permitting. But let me try to take this in two pieces if I could. Let me first talk about why it's not just about the 3 percent. And then let me try to get back to Justice Kennedy's question, talk about the expansion of the permitting obligation, and what EPA is actually thinking and doing about that. The problem here is that the options, one of the problems, significant problem, is that the options that the American Chemistry Council have advanced, and even the Judge Kavanaugh has advanced, would require an invalidation of, or at least a significant, significant revision of EPA's 34 year understanding of the meaning of the phrase any air pollutant in 74, 79, 1, which they have always interpreted to mean any air pollutant subject to regulation under the act. That, you can't apply that 34 year long agency interpretation here and get to one of those results. You've got it. You've got to change it. And what if 34 year agency interpretation is not a statute? No, it's not. Justice Kennedy. You're saying, oh, rather than alter our 34 year interpretation, we're going to revise the provisions of the statute. I don't think that's a good trade. Well, with all the respect, I don't think that's what the agency is doing. And if I may, just, let me, if I could just finish off this problem, is that if you take the, if you draw the line, either at NAX pollutants versus all other previously regulated pollutants, or if you draw the line at local pollutants, but not global pollutants, you are going to knock out some sources that have been subjected to the permitting requirement previously. Can I ask you this question about EPA's position? Because this is something I don't understand. On the one hand, the EPA says that applying the statutory thresholds to greenhouse gases would transform the PSD program into something that would be unrecognizable to the Congress that enacted the program. Isn't that right? Yes, they did say that. On the other hand, EPA says, but that's what we're going to aim to achieve at some point down the road. No, that's a fundamental misconception, just to say, I would like to try to clear it up, and it goes to, I'll try to answer your own question as well, Justice Scalia. What EPA is doing here is saying, this is a transition. It's not a rewrite. And the goal of the transition is not to gradually expand the permitting requirement until they've got all the Thunken-Donuts in America under it. That's not what's going on. In fact, it's the opposite. What they're saying is, they're taking a look at the standards they use to decide who's eligible for apartment. They're looking to change those to the strength they can, consistent with their statutory authority and appropriate Chevron deference, to substantially narrow the numbers of people who will be deemed eligible. That's in progress. Well, then they're never going to get to the statutory thresholds. I thought EPA said, well, we're going to work toward that. No, this is to try to get to the statutory thresholds. Well, let me give you an example of the main one of the few ways that I don't understand the position. If applying the statutory thresholds makes the program unrecognizable. And yet, that's what they're going to aim to do down the road, get to the statutory thresholds, will become more recognizable at that point. Under the point, the nuance there that I think answers your own question is that the agency has discretion in deciding what constitutes the potential to emit 250 tons per year. What they have done historically is evaluate that on the basis of an assumption that it's the facility's operating 24 hours per day. And they'll be back down to 41,000 people falling within this and when you get the number 5, title 5, 6.1 million, that sort of changes what I mean. If that's the question, does in fact this provision give the EPA the obligation to impose permit requirements on 41,000 businesses of a size that really are constituted most 10 or 15% of the problem? Well, that's pretty hard to accept. Well, but I thought what I thought the question was, was whether EPA had the authority to implement this in a way that EPA itself thinks makes sense, which might be on their own reasoning, to not impose permitting requirements on tens of thousands, perhaps millions of small businesses. I thought that was what the question was. It did seem to be the way they put it. It is, but I think the two things converge, Justice Breyer. They're trying to get to the point of saying that you won't have to apply it. If you apply the standards EPA uses now, you just sweep in all these people. The EPA says, well, look. Are they going to get some new standards, but these news, what the words they used in their opinion were streamlining. Right. What the words they used in their opinion implied to me when I read them, that they're never going to want to put tiny boilers onto this because it just doesn't do very much good, and it's expensive to administer. That's how I read it. That's correct

. You're saying, oh, rather than alter our 34 year interpretation, we're going to revise the provisions of the statute. I don't think that's a good trade. Well, with all the respect, I don't think that's what the agency is doing. And if I may, just, let me, if I could just finish off this problem, is that if you take the, if you draw the line, either at NAX pollutants versus all other previously regulated pollutants, or if you draw the line at local pollutants, but not global pollutants, you are going to knock out some sources that have been subjected to the permitting requirement previously. Can I ask you this question about EPA's position? Because this is something I don't understand. On the one hand, the EPA says that applying the statutory thresholds to greenhouse gases would transform the PSD program into something that would be unrecognizable to the Congress that enacted the program. Isn't that right? Yes, they did say that. On the other hand, EPA says, but that's what we're going to aim to achieve at some point down the road. No, that's a fundamental misconception, just to say, I would like to try to clear it up, and it goes to, I'll try to answer your own question as well, Justice Scalia. What EPA is doing here is saying, this is a transition. It's not a rewrite. And the goal of the transition is not to gradually expand the permitting requirement until they've got all the Thunken-Donuts in America under it. That's not what's going on. In fact, it's the opposite. What they're saying is, they're taking a look at the standards they use to decide who's eligible for apartment. They're looking to change those to the strength they can, consistent with their statutory authority and appropriate Chevron deference, to substantially narrow the numbers of people who will be deemed eligible. That's in progress. Well, then they're never going to get to the statutory thresholds. I thought EPA said, well, we're going to work toward that. No, this is to try to get to the statutory thresholds. Well, let me give you an example of the main one of the few ways that I don't understand the position. If applying the statutory thresholds makes the program unrecognizable. And yet, that's what they're going to aim to do down the road, get to the statutory thresholds, will become more recognizable at that point. Under the point, the nuance there that I think answers your own question is that the agency has discretion in deciding what constitutes the potential to emit 250 tons per year. What they have done historically is evaluate that on the basis of an assumption that it's the facility's operating 24 hours per day. And they'll be back down to 41,000 people falling within this and when you get the number 5, title 5, 6.1 million, that sort of changes what I mean. If that's the question, does in fact this provision give the EPA the obligation to impose permit requirements on 41,000 businesses of a size that really are constituted most 10 or 15% of the problem? Well, that's pretty hard to accept. Well, but I thought what I thought the question was, was whether EPA had the authority to implement this in a way that EPA itself thinks makes sense, which might be on their own reasoning, to not impose permitting requirements on tens of thousands, perhaps millions of small businesses. I thought that was what the question was. It did seem to be the way they put it. It is, but I think the two things converge, Justice Breyer. They're trying to get to the point of saying that you won't have to apply it. If you apply the standards EPA uses now, you just sweep in all these people. The EPA says, well, look. Are they going to get some new standards, but these news, what the words they used in their opinion were streamlining. Right. What the words they used in their opinion implied to me when I read them, that they're never going to want to put tiny boilers onto this because it just doesn't do very much good, and it's expensive to administer. That's how I read it. That's correct. All right. Then my question is back, because this has been very helpful. I learned I'm not a net emitter of carbon-idots. No. Leave me, because that means I'm a part of sustainable development. I thought possible. All right. But so I learned quite a lot from this, and I'd like to learn one more thing, which is, look, 74-11. Remember what the Chief Justice just said, about the 83 percent and the 86 percent, and even if you lose, they still can regulate 83 percent, and if you win, you can regulate 86 percent. And my goodness, if 74-11 is over there, letting them do precisely what they want. Why do you need this to be a part of that? That's the part that I have not a clear answer to in my mind. So the reason I tried to suggest earlier, Justice Breyer, that PSD program is supposed to work as a complement together with 74-11. For example, 74-11 now is being used, at least their APIs contemplating, setting standards, greenhouse gas emission standards for power plants. That's a very significant contributor of greenhouse gases, but it's not the only one. There are refineries, there are other major sources. Put those all in. Put those all in. Right, right, complicated standards. Right standards that have certain enforcement capacities and abilities. Right standards that require you to get a PSD permit. I mean, what's wrong with all that? They can do all that. But the problem is that that's going to take a lot of time, and that was the very reason Congress put the PSD program into existence in 1977, was because of the dissatisfaction, because of the time it took to go source by source, pollutant by pollutant. I'm sorry. Under the 74-11 program. I just want to make sure that I understood correctly. Under 74-11, you can require a PSD? No, you can set a national standard. Right. And then, part of the reason, as I said, I think it's just wrong to think about the PSD program as being addressing a different kind of problem from 74-11 program. It's that you've got to meet the 74-11 standard in your PSD application. I could actually get back to Justice Alito's question, because I had a similar issue with what EPA did here. It seems to me it would be completely responsible and understandable. If EPA had said, look, the 100 and 250 don't work with respect to this category of pollutant, Congress didn't know that this kind of pollutant was out there when it wrote those numbers. What it was trying to do was to distinguish between major and minor emitters. The new numbers are X and Y for that, for this kind of pollutant. But, you know, and I understand that EPA may have felt like, oh gosh, can we really do that? But the solution that EPA came up with actually seems to give it complete discretion to do whatever it wants, whenever it wants to. And to not, and to be much more problematic than if EPA had just said, no, it's not a 100 and 250. It's 10 times that. I take that point, Your Honor. I don't actually think that's what EPA was trying to do. I know it's been portrayed that way

. All right. Then my question is back, because this has been very helpful. I learned I'm not a net emitter of carbon-idots. No. Leave me, because that means I'm a part of sustainable development. I thought possible. All right. But so I learned quite a lot from this, and I'd like to learn one more thing, which is, look, 74-11. Remember what the Chief Justice just said, about the 83 percent and the 86 percent, and even if you lose, they still can regulate 83 percent, and if you win, you can regulate 86 percent. And my goodness, if 74-11 is over there, letting them do precisely what they want. Why do you need this to be a part of that? That's the part that I have not a clear answer to in my mind. So the reason I tried to suggest earlier, Justice Breyer, that PSD program is supposed to work as a complement together with 74-11. For example, 74-11 now is being used, at least their APIs contemplating, setting standards, greenhouse gas emission standards for power plants. That's a very significant contributor of greenhouse gases, but it's not the only one. There are refineries, there are other major sources. Put those all in. Put those all in. Right, right, complicated standards. Right standards that have certain enforcement capacities and abilities. Right standards that require you to get a PSD permit. I mean, what's wrong with all that? They can do all that. But the problem is that that's going to take a lot of time, and that was the very reason Congress put the PSD program into existence in 1977, was because of the dissatisfaction, because of the time it took to go source by source, pollutant by pollutant. I'm sorry. Under the 74-11 program. I just want to make sure that I understood correctly. Under 74-11, you can require a PSD? No, you can set a national standard. Right. And then, part of the reason, as I said, I think it's just wrong to think about the PSD program as being addressing a different kind of problem from 74-11 program. It's that you've got to meet the 74-11 standard in your PSD application. I could actually get back to Justice Alito's question, because I had a similar issue with what EPA did here. It seems to me it would be completely responsible and understandable. If EPA had said, look, the 100 and 250 don't work with respect to this category of pollutant, Congress didn't know that this kind of pollutant was out there when it wrote those numbers. What it was trying to do was to distinguish between major and minor emitters. The new numbers are X and Y for that, for this kind of pollutant. But, you know, and I understand that EPA may have felt like, oh gosh, can we really do that? But the solution that EPA came up with actually seems to give it complete discretion to do whatever it wants, whenever it wants to. And to not, and to be much more problematic than if EPA had just said, no, it's not a 100 and 250. It's 10 times that. I take that point, Your Honor. I don't actually think that's what EPA was trying to do. I know it's been portrayed that way. I think they're trying to do the opposite. They're trying to say, well, let's look at how we define what it means to emit 250 tons per year and see if we can make that a more realistic analysis by going from the 24-7 365-day year hypothesis to figuring out how much this source is actually likely to emit. And you could drastically lower the number of sources who would be found to emit 250 tons per year. And that would bring, it would try to bring the system into line with the expectations that major emitters would be regulated. That's their objective here. Our greenhouse gas is the only air pollutant for which EPA has the authority to change the statutory thresholds. Well, I like to make a point if I could about that. The real problem here is CO2. You actually have the other, the six greenhouse gases, the other five, you could use the statutory thresholds on without difficulty. It's a CO2 alone, really, that causes a difficulty. What could it do this for another pollutant, something other than any of the greenhouse gases? Well, I think in fairness, what EPA is saying here is that we've got an obligation under the statute to regulate. We've got an obligation to require a permanent one. There's more than 250 tons per year. And we've got an obligation to get the permits out within a year. That's also a statutory requirement. And that just given the reality of the CO2 emissions, something's got to give. So I don't think it's that they're asserting authority to rewrite the statutory thresholds. They're dealing with a practical problem that's arisen under the immediate circumstance. One of the things that EPA said in the explanation of its rule is that EPA could say that PSD or Title V applies only to certain GHG sources, and it's been suggested that that source would be carbon dioxide. Applies only to certain GHG sources, and does not apply to the remaining GHG sources. But it didn't seem to be any follow-up of that idea of well, the way to cure it is carbon dioxide doesn't work. Take it out. And I think the reason Justice Ginsburg is because that is not going to make the carbon dioxide is also a huge part of the problem. And so you're really not going to be getting at the heart of the problem. And there really is an urgency here. And you know, that's part of what's driving EPA in this situation, of course, is to understanding that this is an urgent environmental problem. It is the gravest environmental problem that we face now as far as EPA's judgment. And it is one that gets worse with the passage of time. The effects are cumulative and they're delayed. And so every year we wait, we make the whole deeper, and we create an even greater threat to future generations. And that really goes to- I'm sorry. I didn't get an answer to- here an answer to Justice Alito's question, and I think it's an important one. There are currently criteria pollutants under the act. Let's assume you find out that there's a particular substance that does cause harm to ambient air quality that is not already covered. And you publish a NAC for that. Can you decide that 100 and 250, you want to regulate at a different threshold, just like you have here? I mean, is this a particular assertion of authority only with respect to greenhouse gases, or does it cover any pollutant under the act? Well, if you're going to use the NACS approach and designate it as a NACS polluteant, then you would be under the rules of NACS polluteant. And that pollutants and that would include this standard. But it's- Well, can you publish a NAC for greenhouse gases? I think it would be within EPA's authority to do so, but they're really significant problems with trying to regulate that way. And that's why- But it's important to understand, Mr. Chief Justice, that the PSD program applies to more than just NACS pollutants

. I think they're trying to do the opposite. They're trying to say, well, let's look at how we define what it means to emit 250 tons per year and see if we can make that a more realistic analysis by going from the 24-7 365-day year hypothesis to figuring out how much this source is actually likely to emit. And you could drastically lower the number of sources who would be found to emit 250 tons per year. And that would bring, it would try to bring the system into line with the expectations that major emitters would be regulated. That's their objective here. Our greenhouse gas is the only air pollutant for which EPA has the authority to change the statutory thresholds. Well, I like to make a point if I could about that. The real problem here is CO2. You actually have the other, the six greenhouse gases, the other five, you could use the statutory thresholds on without difficulty. It's a CO2 alone, really, that causes a difficulty. What could it do this for another pollutant, something other than any of the greenhouse gases? Well, I think in fairness, what EPA is saying here is that we've got an obligation under the statute to regulate. We've got an obligation to require a permanent one. There's more than 250 tons per year. And we've got an obligation to get the permits out within a year. That's also a statutory requirement. And that just given the reality of the CO2 emissions, something's got to give. So I don't think it's that they're asserting authority to rewrite the statutory thresholds. They're dealing with a practical problem that's arisen under the immediate circumstance. One of the things that EPA said in the explanation of its rule is that EPA could say that PSD or Title V applies only to certain GHG sources, and it's been suggested that that source would be carbon dioxide. Applies only to certain GHG sources, and does not apply to the remaining GHG sources. But it didn't seem to be any follow-up of that idea of well, the way to cure it is carbon dioxide doesn't work. Take it out. And I think the reason Justice Ginsburg is because that is not going to make the carbon dioxide is also a huge part of the problem. And so you're really not going to be getting at the heart of the problem. And there really is an urgency here. And you know, that's part of what's driving EPA in this situation, of course, is to understanding that this is an urgent environmental problem. It is the gravest environmental problem that we face now as far as EPA's judgment. And it is one that gets worse with the passage of time. The effects are cumulative and they're delayed. And so every year we wait, we make the whole deeper, and we create an even greater threat to future generations. And that really goes to- I'm sorry. I didn't get an answer to- here an answer to Justice Alito's question, and I think it's an important one. There are currently criteria pollutants under the act. Let's assume you find out that there's a particular substance that does cause harm to ambient air quality that is not already covered. And you publish a NAC for that. Can you decide that 100 and 250, you want to regulate at a different threshold, just like you have here? I mean, is this a particular assertion of authority only with respect to greenhouse gases, or does it cover any pollutant under the act? Well, if you're going to use the NACS approach and designate it as a NACS polluteant, then you would be under the rules of NACS polluteant. And that pollutants and that would include this standard. But it's- Well, can you publish a NAC for greenhouse gases? I think it would be within EPA's authority to do so, but they're really significant problems with trying to regulate that way. And that's why- But it's important to understand, Mr. Chief Justice, that the PSD program applies to more than just NACS pollutants. It's any pollutant subject to regulation on a P. Okay, let's pick. There's a pollutant that isn't currently regulated. And science advances to the point where you think it should be regulated. Can you change the 100 and 250 threshold for that new covered pollutant? I guess what I would say about that is that if EPA found itself in exactly the same circumstances, it finds itself in with respect to greenhouse gases where it's- it feels like the statutory definition compels it to regulate. It kicks in at 250, and you've got to issue a permanent in the year that they could make a judgment comparable to the one they made here, but it's- That would require that concluence of starts- Why, is it- Why did it have to do that? Statutes all the time have implicit exceptions, and not every statute has such exceptions written in words into it. I mean, you know, it's a classic example, one after another. Statute requires animals to pay 50 percent on the train, does not apply to certain snails. Okay? I mean that's the most common thing in law. So what's the big problem here with everybody seems to have, except me, is about, I mean what's the big problem with writing and implicit exception so that you don't regulate tiny little things which no one normally wants to have regulated? Well if the court were to do that, that would certainly justify the EPA's judgment here. I would be, and that problem is I will hear from many that what I would perhaps, it isn't a question of what I'd like to do, the question is what does the law permit? And therefore it's helpful if you can or others think of similar examples. Well, EPA has committed itself in this, in the regulations, in the rulemaking proceedings, to try to bring the 250 tons per year into alignment with the expectation that only large sources will be regulated. That's what EPA is committed to. It's general for really good. I don't have an expanse, as expanse of a notion of reading exceptions in a statute that are not there as Justice Breyer does, but assuming, just assuming that you can read exceptions. That isn't the issue here. The issue is whether you can read in exceptions unnecessarily when the absurdity in question doesn't flow inevitably from the statute. When the statute can be interpreted another way that would not produce the absurdity, aren't you compelled where there is ambiguity to adopt the interpretation of the statute that does not produce absurdity? Rather than adopting the interpretation that produces absurdity and then going around altering the provisions of the contract of the statute. I mean, to take just as Breyer's bubblegum example, yes, I suppose, would you have to make an exception for bubblegum in the display window if the statute were subject to two interpretations, one of which would include display windows and the other one of which wouldn't. It seems to me, of course, you would have to adopt the interpretation that didn't include display windows. That's what's going on here. Yes, there's absurdity, but the issue is how is that absurdity to be taken account of? By simply letting EPA rewrite the very clear numbers in the statute or else by adopting a permissible interpretation of that absurdity. And I think that's quite a different question from what we've been discussing. Two points about that. I could first, that goes to the question of what triggers the permit application. It's only the expansion of the number of permit applicants that even raises this question of so-called absurdity. It doesn't go to the argument. The petitioners are making a far more substantial argument that EPA lacks any authority to consider greenhouse gas emissions under the back provision and other provisions, even for sources that have a permit for there are emissions of non-greenhouse gases. So it only goes to the question of the scope of the triggering provision, not to EPA's authority to use PSD to regulate greenhouse gases for entities that are already subject to the permit for other reasons. Now with respect to the trigger, what I would say about that, Justice Scalia, is that the statutory language is any air pollutant. Reading Massachusetts against EPA, the EPA came to the conclusion that that language necessarily encompasses greenhouse gas emissions. That conclusion is most consistent with the EPA's statutory obligations here because if the choices, you can say the choices between doing something sensible and absurd results, but really the choices between throwing up your hands with respect to what EPA considers to be the most serious air pollution problem we have, or trying to deal with the implementation problem that exists with respect to the emitters of about 15 percent of the sources. That's really the choice. Kagan, well, wouldn't it be right to say that the rule that Justice Scalia is referring to only applies if there are alternative interpretations that are consistent with the legislative purpose? There have to be plausible alternative interpretations of the statute. And reading the phrase any pollutant to me and any pollutant except for greenhouse gases for reasons that have nothing to do with the purposes of the statute is not a plausible alternative interpretation. Wouldn't that be the argument? Yes, that's exactly the argument. I think that's exactly what EPA did when it read Massachusetts against EPA and its understanding of air pollutants and thought about that in the context of the regulatory goals of this program. And of course, the argument against that is, is, no, that the statute evidences concern with ambient air quality and requires that to be measured. And the agency acknowledges that you cannot possibly measure the effect on ambient air quality of greenhouse gases. So it is not clearly compatible with the statute to bring greenhouse gases into regulation

. It's any pollutant subject to regulation on a P. Okay, let's pick. There's a pollutant that isn't currently regulated. And science advances to the point where you think it should be regulated. Can you change the 100 and 250 threshold for that new covered pollutant? I guess what I would say about that is that if EPA found itself in exactly the same circumstances, it finds itself in with respect to greenhouse gases where it's- it feels like the statutory definition compels it to regulate. It kicks in at 250, and you've got to issue a permanent in the year that they could make a judgment comparable to the one they made here, but it's- That would require that concluence of starts- Why, is it- Why did it have to do that? Statutes all the time have implicit exceptions, and not every statute has such exceptions written in words into it. I mean, you know, it's a classic example, one after another. Statute requires animals to pay 50 percent on the train, does not apply to certain snails. Okay? I mean that's the most common thing in law. So what's the big problem here with everybody seems to have, except me, is about, I mean what's the big problem with writing and implicit exception so that you don't regulate tiny little things which no one normally wants to have regulated? Well if the court were to do that, that would certainly justify the EPA's judgment here. I would be, and that problem is I will hear from many that what I would perhaps, it isn't a question of what I'd like to do, the question is what does the law permit? And therefore it's helpful if you can or others think of similar examples. Well, EPA has committed itself in this, in the regulations, in the rulemaking proceedings, to try to bring the 250 tons per year into alignment with the expectation that only large sources will be regulated. That's what EPA is committed to. It's general for really good. I don't have an expanse, as expanse of a notion of reading exceptions in a statute that are not there as Justice Breyer does, but assuming, just assuming that you can read exceptions. That isn't the issue here. The issue is whether you can read in exceptions unnecessarily when the absurdity in question doesn't flow inevitably from the statute. When the statute can be interpreted another way that would not produce the absurdity, aren't you compelled where there is ambiguity to adopt the interpretation of the statute that does not produce absurdity? Rather than adopting the interpretation that produces absurdity and then going around altering the provisions of the contract of the statute. I mean, to take just as Breyer's bubblegum example, yes, I suppose, would you have to make an exception for bubblegum in the display window if the statute were subject to two interpretations, one of which would include display windows and the other one of which wouldn't. It seems to me, of course, you would have to adopt the interpretation that didn't include display windows. That's what's going on here. Yes, there's absurdity, but the issue is how is that absurdity to be taken account of? By simply letting EPA rewrite the very clear numbers in the statute or else by adopting a permissible interpretation of that absurdity. And I think that's quite a different question from what we've been discussing. Two points about that. I could first, that goes to the question of what triggers the permit application. It's only the expansion of the number of permit applicants that even raises this question of so-called absurdity. It doesn't go to the argument. The petitioners are making a far more substantial argument that EPA lacks any authority to consider greenhouse gas emissions under the back provision and other provisions, even for sources that have a permit for there are emissions of non-greenhouse gases. So it only goes to the question of the scope of the triggering provision, not to EPA's authority to use PSD to regulate greenhouse gases for entities that are already subject to the permit for other reasons. Now with respect to the trigger, what I would say about that, Justice Scalia, is that the statutory language is any air pollutant. Reading Massachusetts against EPA, the EPA came to the conclusion that that language necessarily encompasses greenhouse gas emissions. That conclusion is most consistent with the EPA's statutory obligations here because if the choices, you can say the choices between doing something sensible and absurd results, but really the choices between throwing up your hands with respect to what EPA considers to be the most serious air pollution problem we have, or trying to deal with the implementation problem that exists with respect to the emitters of about 15 percent of the sources. That's really the choice. Kagan, well, wouldn't it be right to say that the rule that Justice Scalia is referring to only applies if there are alternative interpretations that are consistent with the legislative purpose? There have to be plausible alternative interpretations of the statute. And reading the phrase any pollutant to me and any pollutant except for greenhouse gases for reasons that have nothing to do with the purposes of the statute is not a plausible alternative interpretation. Wouldn't that be the argument? Yes, that's exactly the argument. I think that's exactly what EPA did when it read Massachusetts against EPA and its understanding of air pollutants and thought about that in the context of the regulatory goals of this program. And of course, the argument against that is, is, no, that the statute evidences concern with ambient air quality and requires that to be measured. And the agency acknowledges that you cannot possibly measure the effect on ambient air quality of greenhouse gases. So it is not clearly compatible with the statute to bring greenhouse gases into regulation. And in the other, I mean, I've got it focused now. It seems to me in my mind that we have two questions and I think they were well stated by Justice Scalia, actually. The first is, what is the alternative interpretation that doesn't apply it here? And that would be an interpretation that doesn't put greenhouse gases within this PSD provision at all. And that might be really unthinkable. No, not unthinkable, but have worse consequences than worrying about the interpretation of this trigger provision. So either we have to do the one or the other. Either we have to interpret the trigger provision with flexibility so that they are written and unwritten exceptions in it, one way or the other. Or we have to say, you can't do that and therefore they don't apply at all, which is worse. Is that a, is that a, if I got it? That's right. I think that states it fairly. I think that states it fairly. I think so. I mean, can I go back on? It depends on what you mean by unthinkable, General Verrelli is. Is it, I think that was just a brighter result. What do you know I understand? But what is supposed to be unthinkable that greenhouse gases should not be regulated? Maybe that is unthinkable. But the issue is, is it unthinkable that Congress did not intend to regulate greenhouse gases when it enacted the current provisions of the statute? But isn't that the argument, just as Glea's alternative plausible interpretation of the statute, might have been an alternative plausible interpretation of the statute pre-mastitude. But it no longer is, isn't that right? That's certainly true, but it wasn't, but it also even before Massachusetts, it had their significant problems with it. Here we have a statutory provision that has very specific numbers. And the agency has said these numbers are absurd. We're going to multiply by 400. Now, in the entire history of Federal regulation, what is the best example you can give us of an agency's doing something like that, where it has taken a statute with numbers and has crossed them out and written in the numbers that it likes? Glea, I obviously wouldn't characterize it quite that way. I don't have a case that's exactly on point. I think Morton against Ruiz is a case that's like this in the sense that the agency had an obligation to provide something to a certain population and it didn't have the funds that made it available to provide it to the whole population that was statually entitled, and it made the judgments that made to try to get the program to work. And I mean, if I could give you a hypothetical on that. What was that? The Board of the Against Ruiz. And if I give you a hypothetical on that, if Congress enacted a statute that said that the Customs Authorities, Border Authorities have an obligation to search every cargo container that comes into a port in the United States for radioactive materials, but no container shall be delayed more than three days. If an agency were faced with those kinds of obligations and it didn't have the resources to get every container searched within three days and it said, well, what we're going to do is search the containers that come from places where we think the risk is most likely. I think everyone would think that that's a reasonable interpretation of the agency's charge and of the statute, and that's essentially what the EPA has done here. So just to be clear, you're not saying, or are you saying, that if you're denied the authority you seek here, there can be no significant regulation of greenhouse gases under the act. You're not saying that. No. I think I want to provide some more specificity, though, in my answer. If I could, the Court has held in American Electric Power that the EPA has authority to prescribe general national standards. Now, with respect to the PSD program, I want to, I do want to emphasize that there is a distinction between the question of what triggers your obligation to get a PSD permit and whether your emissions of greenhouse gases count as any air pollutant that triggers it versus the situation in which if you are already subject to a PSD permit because you are emitting, say, a NAX pollutant or another one of the regulated pollutants, whether under Section 7574A4, you have to meet the best available control technology requirement, which is phrased in terms of a requirement for each pollutant subject to regulation under the act. That's the 8386 question, right? That's correct. That's correct. And so I think those things are different. And so there really are three points. There are 7411. There's triggering

. And in the other, I mean, I've got it focused now. It seems to me in my mind that we have two questions and I think they were well stated by Justice Scalia, actually. The first is, what is the alternative interpretation that doesn't apply it here? And that would be an interpretation that doesn't put greenhouse gases within this PSD provision at all. And that might be really unthinkable. No, not unthinkable, but have worse consequences than worrying about the interpretation of this trigger provision. So either we have to do the one or the other. Either we have to interpret the trigger provision with flexibility so that they are written and unwritten exceptions in it, one way or the other. Or we have to say, you can't do that and therefore they don't apply at all, which is worse. Is that a, is that a, if I got it? That's right. I think that states it fairly. I think that states it fairly. I think so. I mean, can I go back on? It depends on what you mean by unthinkable, General Verrelli is. Is it, I think that was just a brighter result. What do you know I understand? But what is supposed to be unthinkable that greenhouse gases should not be regulated? Maybe that is unthinkable. But the issue is, is it unthinkable that Congress did not intend to regulate greenhouse gases when it enacted the current provisions of the statute? But isn't that the argument, just as Glea's alternative plausible interpretation of the statute, might have been an alternative plausible interpretation of the statute pre-mastitude. But it no longer is, isn't that right? That's certainly true, but it wasn't, but it also even before Massachusetts, it had their significant problems with it. Here we have a statutory provision that has very specific numbers. And the agency has said these numbers are absurd. We're going to multiply by 400. Now, in the entire history of Federal regulation, what is the best example you can give us of an agency's doing something like that, where it has taken a statute with numbers and has crossed them out and written in the numbers that it likes? Glea, I obviously wouldn't characterize it quite that way. I don't have a case that's exactly on point. I think Morton against Ruiz is a case that's like this in the sense that the agency had an obligation to provide something to a certain population and it didn't have the funds that made it available to provide it to the whole population that was statually entitled, and it made the judgments that made to try to get the program to work. And I mean, if I could give you a hypothetical on that. What was that? The Board of the Against Ruiz. And if I give you a hypothetical on that, if Congress enacted a statute that said that the Customs Authorities, Border Authorities have an obligation to search every cargo container that comes into a port in the United States for radioactive materials, but no container shall be delayed more than three days. If an agency were faced with those kinds of obligations and it didn't have the resources to get every container searched within three days and it said, well, what we're going to do is search the containers that come from places where we think the risk is most likely. I think everyone would think that that's a reasonable interpretation of the agency's charge and of the statute, and that's essentially what the EPA has done here. So just to be clear, you're not saying, or are you saying, that if you're denied the authority you seek here, there can be no significant regulation of greenhouse gases under the act. You're not saying that. No. I think I want to provide some more specificity, though, in my answer. If I could, the Court has held in American Electric Power that the EPA has authority to prescribe general national standards. Now, with respect to the PSD program, I want to, I do want to emphasize that there is a distinction between the question of what triggers your obligation to get a PSD permit and whether your emissions of greenhouse gases count as any air pollutant that triggers it versus the situation in which if you are already subject to a PSD permit because you are emitting, say, a NAX pollutant or another one of the regulated pollutants, whether under Section 7574A4, you have to meet the best available control technology requirement, which is phrased in terms of a requirement for each pollutant subject to regulation under the act. That's the 8386 question, right? That's correct. That's correct. And so I think those things are different. And so there really are three points. There are 7411. There's triggering. And then there's if you're already subject to the permit. And the question is about whether the PSD program is limited entirely to pollutants that affect local ambient air quality. I just don't think that adds up at the end of the day. For one thing, the EPA has been regulating since 1988 under the PSD program something called ozone depleting substances. We talked about this a little bit in our brief. Those are substances that have no local effects. They're substances that are released. They go up into the stratosphere and they eat up the ozone. And that then creates additional ultraviolet rays, which cause cancer and cataracts. Well, that has local effects. I mean, everybody knows, I mean, that's small and Los Angeles versus Montana, right? Well, that those local effects counts. And certainly greenhouse gases have those kinds of local effects because they raise the sea levels which cause flooding in certain places and they cause routes in other places. And so the extent you're talking about local effects, the greenhouse gases really aren't. Where are the sea levels risen other than Massachusetts? Well, certainly Massachusetts. But with respect, but EPA has been regulating ozone depleting substances since 1988. Is the U.A. Congress's acquiesced in that? Yes. In fact, we think that 1990 that they ratified it because 1990 Congress undertook a very substantial amendment of the Clean Air Act. One thing they did was specifically address ozone depleting substances. They created a new Title VI for ozone depleting substances. So they were clearly focused on it. And they did not pull ozone depleting substances out of the PSD program at that time. They left them in. And that's significant because they did pull out hazardous air pollutants, which was another new category they created in 1990. I thought there was a very short time lag between EPA's assertion of the authority to regulate the ozone depleting substances under the PSD program and the enactment of- Two years. Two years. I don't know if it was a full two years, but the Congress focused specifically on exactly how ozone depleting substances were going to be regulated under the Clean Air Act. And they created a new- they were- it's not an accident. They were focused exactly on how they were going to be regulated. So I do think- so I do think it's quite a strong ratification argument. And- What's the- I know that it can take this question. If you were going to lose- I knew you were going to ask the question. So I actually think, you know, there's the Judge Kavanaugh approach as the ACC approach. You know, we obviously were not endorsing this. There's a difference between that. There's a significant difference between them. There's one. Well, I've got another thought on that subject, which is- as I said to Justice Alito earlier, the- the whole problem in terms of expanding the permitting requirement is CO2. And so that if the court were to say that any air pollutant can't be interpreted in the way that EPA has interpreted it at the trigger level, to mean what we think it says and what Massachusetts can see if they can palble with the court disagrees with that, seems to me the- the answer that is least problematic from EPA's point of view does the- is the least dissonant and the least causes the least risk of collateral consequences with respect to established regulatory programs which go beyond next pollutants under PST would be to say that you can't read any air pollutant to include CO2 because the inclusion of CO2 generates a permitting obligation that is out of accord with what Congress would have expected

. And then there's if you're already subject to the permit. And the question is about whether the PSD program is limited entirely to pollutants that affect local ambient air quality. I just don't think that adds up at the end of the day. For one thing, the EPA has been regulating since 1988 under the PSD program something called ozone depleting substances. We talked about this a little bit in our brief. Those are substances that have no local effects. They're substances that are released. They go up into the stratosphere and they eat up the ozone. And that then creates additional ultraviolet rays, which cause cancer and cataracts. Well, that has local effects. I mean, everybody knows, I mean, that's small and Los Angeles versus Montana, right? Well, that those local effects counts. And certainly greenhouse gases have those kinds of local effects because they raise the sea levels which cause flooding in certain places and they cause routes in other places. And so the extent you're talking about local effects, the greenhouse gases really aren't. Where are the sea levels risen other than Massachusetts? Well, certainly Massachusetts. But with respect, but EPA has been regulating ozone depleting substances since 1988. Is the U.A. Congress's acquiesced in that? Yes. In fact, we think that 1990 that they ratified it because 1990 Congress undertook a very substantial amendment of the Clean Air Act. One thing they did was specifically address ozone depleting substances. They created a new Title VI for ozone depleting substances. So they were clearly focused on it. And they did not pull ozone depleting substances out of the PSD program at that time. They left them in. And that's significant because they did pull out hazardous air pollutants, which was another new category they created in 1990. I thought there was a very short time lag between EPA's assertion of the authority to regulate the ozone depleting substances under the PSD program and the enactment of- Two years. Two years. I don't know if it was a full two years, but the Congress focused specifically on exactly how ozone depleting substances were going to be regulated under the Clean Air Act. And they created a new- they were- it's not an accident. They were focused exactly on how they were going to be regulated. So I do think- so I do think it's quite a strong ratification argument. And- What's the- I know that it can take this question. If you were going to lose- I knew you were going to ask the question. So I actually think, you know, there's the Judge Kavanaugh approach as the ACC approach. You know, we obviously were not endorsing this. There's a difference between that. There's a significant difference between them. There's one. Well, I've got another thought on that subject, which is- as I said to Justice Alito earlier, the- the whole problem in terms of expanding the permitting requirement is CO2. And so that if the court were to say that any air pollutant can't be interpreted in the way that EPA has interpreted it at the trigger level, to mean what we think it says and what Massachusetts can see if they can palble with the court disagrees with that, seems to me the- the answer that is least problematic from EPA's point of view does the- is the least dissonant and the least causes the least risk of collateral consequences with respect to established regulatory programs which go beyond next pollutants under PST would be to say that you can't read any air pollutant to include CO2 because the inclusion of CO2 generates a permitting obligation that is out of accord with what Congress would have expected. I think- Well, what about- what about facts for CO2 then? Well, no, back would be- and that's just at the trigger, Justice Ginsburg, just at the trigger. We think that- that- I just don't see, given that, back says in any ambiguous terms in section 7475 A4 that anybody who's subject to a permit has got to meet back for each pollutant subject to regulation under the chapter meaning the act. I just don't see how you can get out from under that for- You've got to follow- you've got to follow the plain text of the statute there. Well, if the command of the statute is that back applies for each pollutant subject- Yeah, the plan of the statute is 250 tons per year too. And you've changed that to 100,000 tons per year. Right, but I think- And you were going to get to 74753 A, B, and C on that point. Well, 74753 C also does say that if- that want- if EPA does set a greenhouse gas standard for a particular stationary source like power plants, then that becomes a condition of a permit. That's what C3 says. And so between C3 and back, greenhouse gas assuming that EPA acts under 7411, those are- it seems to me have to be in. This is a question about the definition of the trigger. Now, we don't agree with it, but- but trying to faithfully answer your honest question, that's what I think, that that's the question. Clear. Your reading or- or your suggested out would mean that- that only the major facilities as defined now essentially would- would- Well, if you took CO2 out of the equation, I don't think this- the expanded scope of the permitting obligation is going to happen because it's the CO2 emissions that expand the scope. And so that's why, you know, I'm not endorsing this. Well, Justice Breyer said the difference between 83% and 86% that 3% difference of who you're covering is thousands and thousands of people. That's- or entities, I should say, not people. Of institutions, is that going to be the same under the reading that you're proposing? Pretty close, but I think- but I think the reason that we would- the reason that the exclusion of CO2 seems to me to be the least problematic is that EPA does have an established regulatory framework here that applies not just to NAX pollutants, but to the other non-NAS pollutants. So, if you're acid-missed and the other things that EPA regulates under the PSD program, and you wouldn't be redefining the trigger to exclude those things which have previously been included, you'd- that's- I think the rifle shot solution to the extent that the court thinks it's a problem. Wouldn't the proper answer be if we are rejecting your entire position to say, there are these other options, we're not going to say take out CO2, we're not going to say adopt the Cabinot approach, we're going to say those are choices for EPA to make. Yes, certainly that's right. It's- it's certainly that's right. But I think the argument that as- as I read Judge Cabinot's opinion, and as I understood my friend's argument on behalf of ACC was that the statute essentially compelled the conclusion that you had to pick one of the other of those alternative readings in order to avoid expanding the permitting obligation. And the problem with that way of thinking about it is that there are many other pollutants, non-NAS pollutants that EPA has regulated for years and used as a trigger for years to require PSD permits, which you would put- be at risk of excluding from the program if you were to adopt the ACC or the Judge Cabinot reading as triggers. And that's a problem that seems to me to court ought to be thinking about trying to avoid- I have to say, in reading the brief of the state and reading your brief, I said, I couldn't find a single precedent that strongly supports your position. Brown and Williamson I think is distinguishable for the reasons that forth in the reply of read. And one of the cases you want me to cite- Well, I think- That's the in your position. So at the- at the- at the sustaining the arguments that the trigger applies here, I do think there aren't- there aren't a lot of cases. You're right. This is not a situation that rises very often. I think more than against Louise comes the closest. But- That's not cited in your brief, is it? No, it's not. Mr. Chief Justice, that's true. It was cited and relied upon by the EPA in the- in the rule-making proceedings and rule-making opinions. So I- if I could just sum up here. The EPA did what it did because the problem is confronting- is a problem that the EPA considers to be urgent. Well, General, I don't want to interrupt your summation, but on the- let me just ask this quick question. On the issue of what happens with a facility that is subject to the PSD program because of the emission of other pollutants, the petitioners argue that the- the permitting process would be entirely different for greenhouse gases because that- that would make no sense to require monitoring of local air conditions- air- air- air conditions. It would make no sense to try to assess the effect of the emission of the greenhouse gases on the area in the region. Could you just give a quick response to that- No, I'm sorry to raise that just a little bit

. I think- Well, what about- what about facts for CO2 then? Well, no, back would be- and that's just at the trigger, Justice Ginsburg, just at the trigger. We think that- that- I just don't see, given that, back says in any ambiguous terms in section 7475 A4 that anybody who's subject to a permit has got to meet back for each pollutant subject to regulation under the chapter meaning the act. I just don't see how you can get out from under that for- You've got to follow- you've got to follow the plain text of the statute there. Well, if the command of the statute is that back applies for each pollutant subject- Yeah, the plan of the statute is 250 tons per year too. And you've changed that to 100,000 tons per year. Right, but I think- And you were going to get to 74753 A, B, and C on that point. Well, 74753 C also does say that if- that want- if EPA does set a greenhouse gas standard for a particular stationary source like power plants, then that becomes a condition of a permit. That's what C3 says. And so between C3 and back, greenhouse gas assuming that EPA acts under 7411, those are- it seems to me have to be in. This is a question about the definition of the trigger. Now, we don't agree with it, but- but trying to faithfully answer your honest question, that's what I think, that that's the question. Clear. Your reading or- or your suggested out would mean that- that only the major facilities as defined now essentially would- would- Well, if you took CO2 out of the equation, I don't think this- the expanded scope of the permitting obligation is going to happen because it's the CO2 emissions that expand the scope. And so that's why, you know, I'm not endorsing this. Well, Justice Breyer said the difference between 83% and 86% that 3% difference of who you're covering is thousands and thousands of people. That's- or entities, I should say, not people. Of institutions, is that going to be the same under the reading that you're proposing? Pretty close, but I think- but I think the reason that we would- the reason that the exclusion of CO2 seems to me to be the least problematic is that EPA does have an established regulatory framework here that applies not just to NAX pollutants, but to the other non-NAS pollutants. So, if you're acid-missed and the other things that EPA regulates under the PSD program, and you wouldn't be redefining the trigger to exclude those things which have previously been included, you'd- that's- I think the rifle shot solution to the extent that the court thinks it's a problem. Wouldn't the proper answer be if we are rejecting your entire position to say, there are these other options, we're not going to say take out CO2, we're not going to say adopt the Cabinot approach, we're going to say those are choices for EPA to make. Yes, certainly that's right. It's- it's certainly that's right. But I think the argument that as- as I read Judge Cabinot's opinion, and as I understood my friend's argument on behalf of ACC was that the statute essentially compelled the conclusion that you had to pick one of the other of those alternative readings in order to avoid expanding the permitting obligation. And the problem with that way of thinking about it is that there are many other pollutants, non-NAS pollutants that EPA has regulated for years and used as a trigger for years to require PSD permits, which you would put- be at risk of excluding from the program if you were to adopt the ACC or the Judge Cabinot reading as triggers. And that's a problem that seems to me to court ought to be thinking about trying to avoid- I have to say, in reading the brief of the state and reading your brief, I said, I couldn't find a single precedent that strongly supports your position. Brown and Williamson I think is distinguishable for the reasons that forth in the reply of read. And one of the cases you want me to cite- Well, I think- That's the in your position. So at the- at the- at the sustaining the arguments that the trigger applies here, I do think there aren't- there aren't a lot of cases. You're right. This is not a situation that rises very often. I think more than against Louise comes the closest. But- That's not cited in your brief, is it? No, it's not. Mr. Chief Justice, that's true. It was cited and relied upon by the EPA in the- in the rule-making proceedings and rule-making opinions. So I- if I could just sum up here. The EPA did what it did because the problem is confronting- is a problem that the EPA considers to be urgent. Well, General, I don't want to interrupt your summation, but on the- let me just ask this quick question. On the issue of what happens with a facility that is subject to the PSD program because of the emission of other pollutants, the petitioners argue that the- the permitting process would be entirely different for greenhouse gases because that- that would make no sense to require monitoring of local air conditions- air- air- air conditions. It would make no sense to try to assess the effect of the emission of the greenhouse gases on the area in the region. Could you just give a quick response to that- No, I'm sorry to raise that just a little bit. That's actually quite important. That's just not right. I mean, if you think about it in multiple- there are multiple pollutants that are currently regulated under the PSD program. Some of them have national ambient air quality standards and the- and the local testing makes sense for those. Others don't have national air quality- ambient air quality standards like sulfuric acid mist, for example, and others. There aren't standards for those. And what the way EPA has handled that is we look at the regulations. The regulation says in terms of the monitoring that the statute requires, there's a specific exemption for substances that are otherwise regulated but for which there is no NAX or related standards. So they just exempt from the monitoring requirement. There's also an analysis requirement. And what EPA has said and what the states do in their permitting processes with respect to the analysis requirement for the non-NACS substances, for example, sulfuric acid mist, is to apply a very simple idea. You're not trying in that situation to make sure that the particular emissions aren't having are consistent with the overall ambient air quality level. It's a very simple calculus. More is worse, less is better. And so with respect to things like sulfuric acid mist, with respect to things like ozone depletion substances, that is how it has always worked at the state level under the PSD program. You just- you look at what the back- emissions levels are, you try to get them down. And so you're not treating greenhouse gases any differently than sulfuric acid mist or ozone depletion substances or the others that don't have those requirements. And then in terms of localized effects versus wider effects, I mean, I would just remind the Court about the EMC Homer City case from just a few months ago. It's not at all unusual that the EPA would be regulating emissions in one place because they impose effects, hundreds or even thousands of miles away. The pollutants emitted in Ohio or Kentucky contribute to the air pollution levels in New Haven or Bangor, Maine. That's what that case is all about. And so- and you regulate those pollutants also through the PSD program. And so you don't- you aren't in that situation looking just to see what happens in the local area. It's just never been the nature of this program. It's not- it just doesn't work that way. And if I could just remind the Court and conclusion why EPA did what it did is because this is an urgent problem every year that passes this problem gets worse and the threat to future generation gets worse. And I think faced with the obligations that EPA had, it made the most reasonable choice available to it. Thank you. Well, no, you've got five extra minutes to be fair. And one thing- I've told me that before my summation. You know- you've already gotten going at it very, very quickly. The- you don't think that greenhouse gases should be regulated at the 250 tons per year level, right? I mean, you say Congress did not intend that and it would be absurd. Yes, sir- so what level do you think they should be regulated at? In other words, what- what intelligible principle are you taking from the statute to say we're going to- we're at 100 now, we're going to aim for 50, or in other words, if you had all the resources you need, what level would you pick as the proper one? Well, I think you'd want to- since it's not- you want to look at the definition of what it means to emit 250 tons per year. And then you'd want to think about the underlying notion that- that what Congress is trying to do is to impose these obligations on facilities that are capable of responding to them, that are- they're going to tend to be facilities that are major in quality. And then those are the things that are going to guide you in trying to figure out what the number is. And I think that is what EPA is trying to do. Could I make sure I understand that? Would you pick the number that leads to the same class of emitters? Is that the number you would pick? I'm sorry, Justice Kagan, the same class of emitters as- As- in the more typical emissions context, right? So 102- I don't think it would be- The same class of emitters. I don't know that it will be the same, but I think it will be- but I think the- the class will be a lot smaller than the class under EPA's current understanding of what it means to emit 250 tons per year. Well, how did the EPA comment settle on the number? Yeah, they- they tried to explain that in- in one of the rule-making orders. And I think what they did was try to figure out- and I think that- that's what the right balance point where they were accomplishing very significant emissions limitations while not sweeping in sources that were- that the- these very large number of small sources that were going only- only making the incremental- and incremental difference

. That's actually quite important. That's just not right. I mean, if you think about it in multiple- there are multiple pollutants that are currently regulated under the PSD program. Some of them have national ambient air quality standards and the- and the local testing makes sense for those. Others don't have national air quality- ambient air quality standards like sulfuric acid mist, for example, and others. There aren't standards for those. And what the way EPA has handled that is we look at the regulations. The regulation says in terms of the monitoring that the statute requires, there's a specific exemption for substances that are otherwise regulated but for which there is no NAX or related standards. So they just exempt from the monitoring requirement. There's also an analysis requirement. And what EPA has said and what the states do in their permitting processes with respect to the analysis requirement for the non-NACS substances, for example, sulfuric acid mist, is to apply a very simple idea. You're not trying in that situation to make sure that the particular emissions aren't having are consistent with the overall ambient air quality level. It's a very simple calculus. More is worse, less is better. And so with respect to things like sulfuric acid mist, with respect to things like ozone depletion substances, that is how it has always worked at the state level under the PSD program. You just- you look at what the back- emissions levels are, you try to get them down. And so you're not treating greenhouse gases any differently than sulfuric acid mist or ozone depletion substances or the others that don't have those requirements. And then in terms of localized effects versus wider effects, I mean, I would just remind the Court about the EMC Homer City case from just a few months ago. It's not at all unusual that the EPA would be regulating emissions in one place because they impose effects, hundreds or even thousands of miles away. The pollutants emitted in Ohio or Kentucky contribute to the air pollution levels in New Haven or Bangor, Maine. That's what that case is all about. And so- and you regulate those pollutants also through the PSD program. And so you don't- you aren't in that situation looking just to see what happens in the local area. It's just never been the nature of this program. It's not- it just doesn't work that way. And if I could just remind the Court and conclusion why EPA did what it did is because this is an urgent problem every year that passes this problem gets worse and the threat to future generation gets worse. And I think faced with the obligations that EPA had, it made the most reasonable choice available to it. Thank you. Well, no, you've got five extra minutes to be fair. And one thing- I've told me that before my summation. You know- you've already gotten going at it very, very quickly. The- you don't think that greenhouse gases should be regulated at the 250 tons per year level, right? I mean, you say Congress did not intend that and it would be absurd. Yes, sir- so what level do you think they should be regulated at? In other words, what- what intelligible principle are you taking from the statute to say we're going to- we're at 100 now, we're going to aim for 50, or in other words, if you had all the resources you need, what level would you pick as the proper one? Well, I think you'd want to- since it's not- you want to look at the definition of what it means to emit 250 tons per year. And then you'd want to think about the underlying notion that- that what Congress is trying to do is to impose these obligations on facilities that are capable of responding to them, that are- they're going to tend to be facilities that are major in quality. And then those are the things that are going to guide you in trying to figure out what the number is. And I think that is what EPA is trying to do. Could I make sure I understand that? Would you pick the number that leads to the same class of emitters? Is that the number you would pick? I'm sorry, Justice Kagan, the same class of emitters as- As- in the more typical emissions context, right? So 102- I don't think it would be- The same class of emitters. I don't know that it will be the same, but I think it will be- but I think the- the class will be a lot smaller than the class under EPA's current understanding of what it means to emit 250 tons per year. Well, how did the EPA comment settle on the number? Yeah, they- they tried to explain that in- in one of the rule-making orders. And I think what they did was try to figure out- and I think that- that's what the right balance point where they were accomplishing very significant emissions limitations while not sweeping in sources that were- that the- these very large number of small sources that were going only- only making the incremental- and incremental difference. I mean, what- what EPA did was say essentially we can get to 85% of the emissions we're trying to get to by setting the standards where we've set them. That's- Well, why- two things. One is you haven't said anything about the Title V problem, which they said was a 6.1 million in- persons or individuals who are, you know, businesses coming into it. So how do you get them out of that one? Well, I think the streamline of same idea. I mean, you know, it's the same basic- why- and there'd be a good reason for this, but the bell that it rang is that agencies have tremendous authority about how they distribute their enforcement resources. They don't have to enforce everything against everything. And that is a basic principle. They have to put their- put their money where it will do the most good. And so why wasn't that? No one's really argued it. I just wouldn't do- sort of like missing- there would be a helpful point for us, but for this- and I want to explain why we didn't because there's a citizen's suit provision in the law. And so that's what they'll tell you on the bottle if I- And so I think that's the reason why, because it's subject to a citizen's suit, whether we exercise our- In other words, you would be out of it totally and any citizen could go bring a suit, say, where is your permit? That's a problem. If you know further questions, thank you. Thank you, General. Mr. Kysler, five minutes. Thank you, Mr. Chief Justice. You would ask the solicitor general what would back involved in this kind of situation? And I think Your Honor gave a perhaps absurd hypothetical about light bulbs. Your Honor should know that EPA's instruction to the State and local permitting authorities does address light bulbs in the cafeteria. What it says is that State and local permitting authorities likely, likely, do not need to look at whether more efficient light bulbs should be used in a plant's cafeteria, because that would probably be not worth the burden in terms of the payoff. But the fact that they are talking about it at that level of detail just brings into sharp relief that this PSD process, when applied to greenhouse gases, which is about energy efficiency, not about adding technology to control the stuff that comes out of smoke stacks, is pervasive in potentially affecting every aspect of an industrial plant's operation and asking the 90-state and local permitting authorities to decide what needs to be done. And that's what's so different between this and the NSPS program, which functions by setting emission standards that each plant can then decide how best to. So what do I do with the examples in the brief of the 144 permits that have already been given? People who have managed to come in to compliance under back. Oh, and it's certainly not our submission that every single determination by every one of these authorities is going to be unreasonable or outrageous or is going to reach into the cafeteria. But it is that the scope of this is so different in nature and kind than the NSPS program, which would set efficient standards that people would be able to meet. And the second point I would like to make, Your Honor, is that there is a selectivity about what the agency considers ambiguous and unambiguous. Unambiguously is required to apply Massachusetts definition of pollutant. But any air pollutant is ambiguous enough to accommodate any regulated air pollutant. But 100 and 250 tons per year, that's really ambiguous because it can mean 100,000. And I mention this because the selectiveness with which EPA has turned the ambiguity on and off so that in combination it maximizes the agency's discretion shows that when we talk about what is, what does the least violence to the statute, we have to think about it among other things along the parameter of separation of powers. And whether the way in which the agency has proceeded here has aggregated an exceptional and troubling degree of discretion to design its own climate change program. And finally, with respect to the different definitions of pollutant, we've certainly proceeded here as if we are defining that particular word in the statute. But there is another way to think about the interpretive exercise here. And that is Brown and Williamson. Brown and Williamson started with the assumption that the definitions in the statute of drug and device encompassed nicotine and cigarettes. But then it went on to say that giving the FDA jurisdiction under those programs over tobacco would be inconsistent with the regulatory structure that Congress enacted. And when it did that, it didn't go back to those definitions and say we have to now figure out which word in that definition means something different than what we originally assumed. It said that the interpretation as a whole conflicted with the statute as a whole and that was sufficient. We think the same is true here

. The Court has no further questions. Thank you. Thank you, Council. Council, the case is submitted