UTILITY AIR REGULATORY GROUP v. EPA
After the 2007 Supreme Court decision in Massachusetts v. EPA that determined that air pollution was subject to Environmental Protection Agency (EPA) regulation under the Clean Air Act, the EPA set out a series of standards governing greenhouse gas emissions. One of these benchmarks set emission standards for vehicles, while another one required stationary sources of greenhouse gases to obtain constructing and operating permits from the EPA. The petitioners, who include various state and industry groups, challenged these rules on the grounds that they were based on an improper construction of the Clean Air Act and are arbitrary and capricious because they are based on an inadequate scientific record. The U.S. Court of Appeals for the Federal Circuit dismissed the challenges.
Did the EPA permissibly determine that its regulation of greenhouse gas emissions from new motor vehicles under the Clean Air Act also triggered permit requirements for stationary sources of greenhouse gas emissions?
ORAL ARGUMENT OF PETER KEISLER@@ON BEHALF OF THE PRIVATE PARTY PETITIONERS
Chief Justice John G. Roberts: We will hear argument this morning in Case 12-1146, Utility Air Regulatory Group v. The Environmental Protection Agency and the consolidated cases.
Mr. Peter Keisler: Mr. Chief Justice, and may it please the Court:
The situation presented by this case is, to our knowledge, unprecedented in at least two respects.
First, EPA agrees that its interpretation of the PSD and Title V statutes is adopted, then applying other provisions of those same statutes would, according to their terms, would in EPA's words result in a program that would have been unrecognizable to the Congress that enacted it, and so contrary to Congress's intent that the Agency calls it absurd.
And second, EPA took that conclusion not as a reason to reexamine its interpretation, but as a basis for rewriting other provisions of the statutes that are clear and unambiguous, the numerical permitting thresholds that Congress enacted, because the Agency wrongly believes that fixes the problem.
And this is not a single one-time act of statutory rewriting, as problematic as that alone would be, because the Agency has said it intends to continually adjust and readjust thresholds into the indefinite future based on its ongoing assessment of the cost and benefits of regulation.
Justice Elena Kagan: Mr. Keisler, I'm sorry.
Can I ask about your interpretation of the phrase “ any air pollutant ”?
Because there are a lot of different interpretations that have gone on among the various briefs and among the lower court opinions in this case.
So here are some choices, all right?
And I want really to ask you to pick what you're arguing for.
Your original position was that “ any air pollutant ” meant any NAAQS pollutant for which the area is in attainment; that was your original position.
Judge Kavanaugh's position is that it means any NAAQS pollutant.
There is another position that goes on in the briefs that says no, it doesn't mean any NAAQS pollutant; it means any local pollutant, whether or not it's a NAAQS pollutant; and there is still another position that says it's really any regulated pollutant other than greenhouse gases.
So those are four different interpretations that all of the folks on your side, and I realize there are a lot of them, have presented.
And I guess I'm asking you which one you're arguing for.
Mr. Peter Keisler: --Yes.
Your Honor, I'm here on behalf of all the private party Petitioners, and we have two arguments.
Our principal argument and the one I would like to focus on first is that while other programs of the Clean Air Act give EPA authority to regulate greenhouse gases from stationary sources, PSD does not.
And that is because -- and this is where I would choose one of the options Your Honor gave me -- and that is because the PSD program is exclusively focused on emissions that have area-specific air quality impacts, and not on globally undifferentiated phenomena.
I wouldn't use the words--
Justice Sonia Sotomayor: May I ask--
Justice Elena Kagan: When you say area-specific, I mean, I take it that these sort of ozone pollutants are not area-specific.
Would your interpretation exclude those as well?
Mr. Peter Keisler: --If the EPA couldn't make a regulatory finding that they had an area-specific air quality impact, yes.
Now, the sources--
Justice Sonia Sotomayor: --Could I ask you a follow-up to Justice Kagan?
Now that's a fifth interpretation by your side.
That to me is the quintessential ambiguity in a statute where we give deference to the Agency.
So if your side can't even come to one interpretation, why shouldn't we defer to the Agency?
Mr. Peter Keisler: --Well, first of all, Your Honor, the deference that an agency is afforded is always going to be limited to reasonable interpretations, and we would start out with the premise that an interpretation that requires the Agency to rewrite other provisions of the Act is not reasonable.
Justice Sonia Sotomayor: Well, it hasn't rewritten them.
All it has said, as I understand it, and I don't understand -- other than your view that there are too many people it's regulating, is that we can't implement it immediately, because it would overburden us administratively.
It hasn't said that over time, with streamlining and with other adjustments, that it can't do this.
It's just said we can't do it right away.
Mr. Peter Keisler: That is right, Your Honor.
And that actually reflects a deeper problem, and I'd like to address that and then also explain our why our position we think is the correct and only correct interpretation of the statute on the broader question.
Justice Ruth Bader Ginsburg: Before you do that, can you clarify whether or not you agree with the dissenting judges on the D.C. Circuit?
That is, if we limit it to criteria pollutants, even so, BACT must be installed for greenhouse gases.
You seemed in your main brief to agree with that.
You have a footnote saying it's got a heck of a lot of differences.
It's 86 percent of the emissions on the government's theory; 83 on yours.
But your reply brief seems to turn 180 degrees from that.
Mr. Peter Keisler: And -- 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.
Justice Elena Kagan: But, again, that's because they're not local.
Mr. Peter Keisler: Because they don't have area-specific air quality impacts, yes.
Justice Ruth Bader Ginsburg: Well, what do you make -- 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 smog.
Mr. Peter Keisler: Certainly, every effect that any environmental phenomenon 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 that the PSD statute--
Justice Antonin Scalia: It's certainly not measurable.
The agency doesn't even assert that it's measurable, right.
Mr. Peter Keisler: --That's right.
And -- and maybe it would help if I specifically identified.
There are three features of the--
Chief Justice John G. Roberts: I'm sorry.
Before you do that, we have an outstanding question from Justice Sotomayor.
Mr. Peter Keisler: --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 by carbon dioxide, it is contravening congressional intent in another way.
Justice Antonin Scalia: 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.
Mr. Peter Keisler: Well, and the problem is, Justice Scalia, 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.
Justice Antonin Scalia: It -- 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.
Mr. Peter Keisler: --That's right.
Justice Antonin Scalia: It hasn't said that.
Mr. Peter Keisler: 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.
Justice Samuel Alito: Mr. Keisler, 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--
Mr. Peter Keisler: That's right.
Justice Samuel Alito: --substituted?
Mr. Peter Keisler: That's right, Your Honor.
And I think there are really two parallel problems that we're dealing with, each of 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 were 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 show that.
The first is Section 7471, which is, I think, on page 13A of the appendix to the government's brief.
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.
Justice Stephen G. Breyer: 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, do A, B, C and D.
And then it turns out, since there's so many of the regulated things, that it just doesn't make sense to apply A, B and C 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 bubble gum that's been around for more than a month.
Well, what about bubble gum used in a display case that nobody ever intends to eat?
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?
Mr. Peter Keisler: I don't know that there actually is a precedent of this Court which says the agency can do precisely what it did here, which is take an express command that identifies thresholds, that didn't delegate to the agency the determination of the thresholds but says--
Justice Sonia Sotomayor: But I'm -- but I'm a little confused, because there have to be pollutants who -- where it doesn't emit just 250, where it emits 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 -- to get to measurable pollutants that -- that are at 250 or -- or can be brought below 250.
Mr. Peter Keisler: --Well, that's right, Your Honor.
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 or has a potential to emit that or more is subject--
Justice Sonia Sotomayor: That's a minimum, but anything--
Mr. Peter Keisler: --That's right.
Justice Sonia Sotomayor: --above it.
Mr. Peter Keisler: That's right.
Anything above it.
Justice Sonia Sotomayor: All right.
Mr. Peter Keisler: And then -- and then best available--
Justice Sonia Sotomayor: --And so GHG is something that's above that and it's never going to be brought down below it.
Mr. Peter Keisler: --That's right.
But it's above it for millions of entities that Congress intended to exempt from the permitting process.
And if I could just continue--
Justice Sonia Sotomayor: Right.
Well, let's go--
Justice Elena Kagan: Mr. Keisler, 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 cases raises is that everybody is violating a statutory term.
EPA is saying, no, we can't do the 100 to 250 with respect to greenhouse gases, but you are 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?
Mr. Peter Keisler: --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, 100 and 250 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 follow up--
Justice Elena Kagan: Well, I think I don't really understand.
But 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 meaning 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 emitted -- emitted chemical or whatever that makes the numbers not work.
Mr. Peter Keisler: --No.
Let me -- it goes much beyond the numbers, Justice Kagan.
I think if anybody were looking at the PSD statute in isolation, without the benefit of Massachusetts v. 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 impacts.
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 7475(e), which can be found on pages 27A to 29A, I think, of the government's 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 for 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 emissions.
Chief Justice John G. Roberts: --Counsel, you began that discussion by saying putting Massachusetts v. EPA to one side.
But I was in the dissent in that case, but we still can't do that.
Mr. Peter Keisler: No, that's--
That's -- that's right, Your Honor.
Justice Anthony Kennedy: And -- and my question is along that exact same line.
Let's assume, and it's the case, that we're bound by both the result and the reasoning of Massachusetts and EPA and the -- the American Electric v. Connecticut case.
Under your view, what regulatory force, what regulatory significance, do those cases have under, A, your approach and, B, the approach by the Chamber of Commerce in the blue brief?
I -- I think that may be consistent with the subject the Chief Justice just opened.
Mr. Peter Keisler: Sure.
Let me begin with Massachusetts v. EPA and then I'll turn to AEP v. Connecticut.
Massachusetts v. 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 v. 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 II provisions on motor vehicles that were at 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 II 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.
Justice Ruth Bader Ginsburg: What else does it cover other than Title II, other than mobile vehicles?
Mr. Peter Keisler: There are multiple places in which the word “ pollutant ” appears in the Act in which the EPA has understood Mass v. 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 the definition literally could be held to encompass.
Justice Sonia Sotomayor: --That's generally because the section that it's in gives a different definition directly.
Mr. Peter Keisler: No, that's -- with respect, Your Honor, that's not correct.
So, for example, in the PSD in 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.
Justice Sonia Sotomayor: You are right, but--
Mr. Peter Keisler: The context suggests otherwise.
The same thing with the provision on visibility-impairing pollutants.
Justice Anthony Kennedy: But your -- 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?
Mr. Peter Keisler: No, I don't think so, Your Honor, because it was an act of interpretation in Massachusetts v. 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 at issue here and ask whether it will produce extreme or counterintuitive measures if it weren't the case that that was an additional part of the inquiry that was necessary.
Justice Ruth Bader Ginsburg: And what other programs I asked earlier.
So we have the mobile vehicles.
You say it excludes PSD.
What else does it--
Mr. Peter Keisler: I think most critically, Your Honor, it includes the new source performance standards program of Section 111 that this Court discussed in Connecticut v. 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 mention 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 category 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 emissions 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 global warming.
Justice Stephen G. Breyer: So in your opinion -- is -- I'm not sure what the statutory cite is to the provision you are talking about.
Is it 7411?
Mr. Peter Keisler: That's right, Your Honor.
Justice Stephen G. Breyer: All right.
So you're saying they could use 7411(a) and (b) to get to just the same place they are today.
Mr. Peter Keisler: Yes, without--
Justice Stephen G. Breyer: You don't see an objection.
There must be some reason they didn't do that.
Mr. Peter Keisler: --Well, they are doing it, Your Honor.
Justice Stephen G. Breyer: 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.
You agree with them that they could do it under the other one and we'd end up at exactly the same place.
Mr. Peter Keisler: 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 emissions 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.
Justice Stephen G. Breyer: It says
"such standards with such modifications as he deems appropriate. "
That's the language of 7411(b).
Mr. Peter Keisler: Right.
Justice Stephen G. Breyer: Okay.
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?
Mr. Peter Keisler: 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 -- sorry.
7471, which says that the prevention of significant deterioration is focused on deterioration of air quality in each region; the study required by 7475(e), which is of local conditions; and the fact that this is assigned to 90 State and local permitting authorities.
Justice Antonin Scalia: Is that your second point?
I've been keeping a list here of points you -- 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.
Mr. Peter Keisler: Oh, well, Connecticut.
Justice Antonin Scalia: You never did that, yes.
Mr. Peter Keisler: Well, Connecticut v. 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 emissions standards through notice and comment rulemaking.
Connecticut v. AEP certainly did not approve -- the PSD provisions here -- certainly did not approve the regulations rewriting the statutory thresholds that the EPA had to -- had to promulgate in this case.
Justice Antonin Scalia: The other thing -- you were going to give two points and you only got to -- what is it -- 7411(e), but there was another point.
Mr. Peter Keisler: There were really -- yes, there were three features I mentioned of the PSD statute which we think make the context clear.
Justice Antonin Scalia: You got the first, which was the--
Mr. Peter Keisler: Which was 7471, prevention of significant deterioration.
Justice Antonin Scalia: --Right.
Mr. Peter Keisler: The second was that study, 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 -- 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 a national basis.
Justice Sonia Sotomayor: --You -- just to be clear, your reading would say that the -- that the Agency was not permitted, with notice and opportunity to be heard, to say -- to make a criteria -- make this a criteria of pollution in NAAQS.
Mr. Peter Keisler: If the Agency had tried to establish a NAAQS 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, either 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 NAAQS structure.
And if I could reserve the--
Chief Justice John G. Roberts: Well, why don't you take an extra 5 minutes, and -- and you 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?
Mr. Peter Keisler: --I think it does, Your Honor, because while that might deal with the specific issue of rewriting the thresholds, the fact that the PSD provisions for the reasons I have indicated is limited to area-specific air impacts would we think be violated merely by applying best available control technology to a globally disbursed substance like greenhouse gases.
Chief Justice John G. Roberts: I understand.
But they would only be applying that with respect to sources that are already required to operate under PSD permits.
Mr. Peter Keisler: 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 issue 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 BACT provision, shall only apply to greenhouse gases, even when they are regulated, if you're emitting them at levels of 100,000 tons per year or 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.
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--
Chief Justice John G. Roberts: You have three and a half minutes left.
Mr. Peter Keisler: --Not including rebuttal?
Chief Justice John G. Roberts: No.
You will get 5 minutes of rebuttal.
Mr. Peter Keisler: 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, narrower 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 Kavenaugh'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.
Justice Elena Kagan: Well, but that's not Judge Kavenaugh's position.
I thought Judge Kavenaugh's position is any NAAQS pollutant, all NAAQS pollutants.
Mr. Peter Keisler: That's right, Your Honor, and that is a distinction.
Our position is similar but not identical to his position.
Justice Elena Kagan: And it comes from a different portion of the statutory language.
Mr. Peter Keisler: That's right.
We are focused on language in any area to which this part applies, and that is 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.
Justice Elena Kagan: Can I ask, Mr. Cavanaugh, why Judge Kavenaugh's argument has been left by the wayside?
Mr. Peter Keisler: It is very similar, Your Honor, to the argument that we're making, but we get at it in a different way and with a slightly different result.
Justice Elena Kagan: Well, it does -- it comes from different statutory language.
His arguments about the structure of the statute don't apply to your argument.
So I think, notwithstanding that there is some overlap between the arguments, the legal rationales are entirely different, and I guess I'm just curious.
Mr. Peter Keisler: This is the argument we made below and it's the argument we've continued to make here.
And the point of the argument.
Justice Sonia Sotomayor: I don't think that answers the question.
Mr. Peter Keisler: Excuse me, Your Honor?
Justice Sonia Sotomayor: I said I don't think -- I don't think it answers the question, which is I know that's the argument; are you saying you can't defend his argument or are you saying that--
Mr. Peter Keisler: No, it's just that it's been hard enough to make two alternative arguments in this forum and to add a third to it would be more than I think I could handle.
Justice Ruth Bader Ginsburg: --Can you clarify that?
We have the NAAQS criteria.
EPA has added many others across the years.
For 30 years it's been adding things for which there are no NAAQS.
What about all of those?
Mr. Peter Keisler: Your Honor, it is true that ever since 1980 -- although it proposed our interpretation as its original interpretation of the statute, ever since EPA has said that any pollutant, whether it's a NAAQS pollutant, whether it's a pollutant for which the area is in attainment, 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 the 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 will reserve the remainder of my time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF JONATHAN F. MITCHELL ON BEHALF OF STATE PETITIONERS
Mr. Jonathan F. Mitchell: Mr. Chief Justice and may it please the Court:
There of 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 uniform construction after the Clean Air Act even after this Court's ruling in Massachusetts that “ air pollutant ” includes all things airborne for purposes of Title 2.
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 5 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 atextual 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 5 programs.
Congress does not establish round holes for square pegs, and Brown & Williamson holds in these situations agency cannot make a round hole square by rewriting unambiguous statutory language.
Justice Elena Kagan: General, I take it that the unambiguous statutory language that you are referring to is the references to 100 and to 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 and 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 to up the numbers, and that will be the rest of the statute and all the purposes of Congress intact.
Mr. Jonathan F. Mitchell: Justice Kagan, the reason we don't think the approach that you describe is permissible is because there are statutory provisions in the Clean Air Act that specifically forbid EPA to do what Your Honor is prescribing.
7661(a)(A) says that EPA cannot under any circumstance exempt any major source from the Title 5 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 5 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 Massachusetts.
Massachusetts held that “ air pollutant ” unambiguously includes all things airborne, all airborne compounds of whatever stripe for purposes of Title 2.
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 7411(a)(4), 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 it 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 5 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's all things airborne view of the phase “ 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.
Justice Elena Kagan: 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 does 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 what you're saying, which is anything other than greenhouse gases or anything 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?
Mr. Jonathan F. Mitchell: 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 statutory--
Justice Sonia Sotomayor: 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?
Mr. Jonathan F. Mitchell: --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 unambiguous requirement--
Justice Stephen G. Breyer: But that's a difficult -- I think where Justice Kagan is going -- and I will if she wasn't, but I think she was -- is put the definition from 7479 in your mind.
That means something to you, right?
You know what I'm talking about.
Mr. Jonathan F. Mitchell: --The definition of?
Justice Stephen G. Breyer: Of the major emitting facility.
Mr. Jonathan F. Mitchell: Right.
Justice Stephen G. Breyer: Okay.
Now, we look at 7475, and it says you have to have a permit and use best available control technology.
And then we go to the definition, and it says, among other things,
"For any source with the potential to emit 250 tons per year or more of any pollutant. "
Now, that doesn't -- my God, that maybe means every 500 people, every school is applied here.
So you say we've got to do 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 of 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.
That's choice one.
Choice two is it means any air pollutant including greenhouse gases, but implicitly EPA has the authority to exempt small emitters.
Now, which does the less violence to the statute?
Mr. Jonathan F. Mitchell: Choice one.
And the reason choice one--
Justice Stephen G. Breyer: I knew you would say that.
Mr. Jonathan F. Mitchell: --The reason choice one 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 two that Your Honor described, where it rewrites unambiguous statutory language to avoid absurdity.
If the simple choice were between construing one unambiguous statutory provision to avoid the anomalous results and construing 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 of--
Justice Stephen G. Breyer: All right.
So let me modify my question.
I get that answer on the language there.
But if you had been sitting in Congress and the Senate, Mr. Billings, I think, is the staff person, Senator Muskie, and suppose that you had this choice put to you with your language.
We'd either like to have the authority implicit here to exempt the football team, the tiny emitters, or we'd like it not to cover it at all.
Which do you think the Senate would have chosen in enacting this bill from the evidence in the language itself, in the evidence which I look at, the history of the bill?
Mr. Jonathan F. Mitchell: --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 V.
They say that right there in Section 7061(a)(a) on page 44 of the statutory appendix in--
Justice Sonia Sotomayor: Title V is not the PSD requirement.
Title V is just the recordkeeping provision.
Mr. Jonathan F. Mitchell: --That's true, but EPA--
Justice Sonia Sotomayor: And so why shouldn't we exempt people from Title V?
That's not what's causing the burden that you're talking about.
It's just a recordkeeping provision.
Mr. Jonathan F. Mitchell: --But it's a -- it's a very burdensome recordkeeping provision as -- as EPA acknowledges.
That's why they're not willing to impose it on every entity that emits more than 100 tons per year of carbon dioxide.
It costs, on average, $20,000 to get a Title V permit and -- 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 -- 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 II, EPA has narrowed that construction in numerous other parts of the statute.
Justice Stephen G. Breyer: All right.
If you can narrow it, why not 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.
Mr. Jonathan F. Mitchell: I don't -- yeah, I don't think it would be a permissible act of statutory construction to say that carbon dioxide could be an air pollutant and not an air pollutant at the same time.
Justice Antonin Scalia: Well, you -- you'd accept his definition, wouldn't you?
You'd 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.
Mr. Jonathan F. Mitchell: Right, which means it can't be regulated under the Title V--
Justice Antonin Scalia: So that would be a wonderful definition.
Justice Stephen G. Breyer: It can, though.
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.
Mr. Jonathan F. Mitchell: --Well, we have a problem with--
Justice Stephen G. Breyer: I mean, are you saying it doesn't make sense to control major emitters of CO2?
Mr. Jonathan F. Mitchell: --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 the 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.
They need to get--
Justice Elena Kagan: 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 a statute.
And given that this whole thing arises because there's this new kind of emission, which -- which the numbers don't work for, so 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?
Mr. Jonathan F. Mitchell: --I think because the Court rejected that very idea in Brown & 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 ” in isolation, but this Court rejected FDA's assertion of jurisdiction by saying that the unambiguous requirements of the Food and Drug Act would be--
Justice Sonia Sotomayor: To accept your -- your argument, we have to reverse Massachusetts.
Mr. Jonathan F. Mitchell: --No, not at all, Justice Sotomayor.
Justice Sonia Sotomayor: Well, you're saying that the -- that Congress didn't intend to control this pollutant.
We said there that it did.
Mr. Jonathan F. Mitchell: 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 -- and not even EPA is making that assertion to this Court.
And we've shown throughout how EPA has interpreted air pollutant differently.
So there is no need to visit 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.
If the Court has no further questions, I yield my time back to the Court.
Chief Justice John G. Roberts: Thank you, General Mitchell.
ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR. ON BEHALF OF THE RESPONDENTS
Donald B. Verrilli Jr: Mr. Chief Justice, and may it 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 statutory text, and it rests on a fundamental misunderstanding of the PSD program and the way it is supposed to operate in conjunction with the--
Justice Antonin Scalia: Why?
Why would it be unreasonable to give -- give EPA authority to regulate mobile sources and not authority to -- to regulate stationary sources, given that stationary sources have to be licensed in this fashion and it -- it produces all sorts of other problems?
That doesn't seem to me irrational at all.
Donald B. Verrilli Jr: --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 this relates to a question you asked, Justice Breyer -- Section 7411 and the PSD program are not aimed at different problems.
They are aimed at the same problem, and you can see that from the statutory text.
For example, if one looks at section 7475(a)(3), 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 are a major emitting facility, you've got to -- if you are looking at subsection (3), under (3)(A) and (3)(B), you've got to show that you can meet all of the local air quality requirements of the NAAQS, those standards; and then (C) says you've got to meet any other applicable emissions standard or standard of performance under this chapter.
And that standard of performance language is not an accident.
In 7411 the standards that are set, the nationwide standards that Mr. Keisler was discussing for greenhouse gases or other air pollutants, are called standards of performance.
So it's 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 will 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 Best Available Control Technology.
Justice Anthony Kennedy: 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 they -- that all three have to be complied with.
Donald B. Verrilli Jr: Yes, they all three have have to be complied with, yes, Justice--
Justice Anthony Kennedy: But then that doesn't help you, because you are right back to where you started.
You have the tonnage per year requirement.
Donald B. Verrilli Jr: --Well, I would be happy to--
Justice Anthony Kennedy: And with the absurd result that follows.
Donald B. Verrilli Jr: --Well, I would 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 are supposed to do under BACT is use Best Available Control Technology to get above the floor, that the NSPS program sets those standards on an every 8-year basis, and the point of BACT is to force best practices to keep raising the bar during those 8-year intervals.
And there is 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 -- of air pollutant regulations that were being enacted by EPA under the 7411 standard; and it's because under 7411 EPA has got to go one source category at a time.
It has got to do power plants; then it's got to do refineries; then 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 -- of the PSD program is to put in place an additional requirement.
It's exactly what Congress was after.
So that when there is a standard under 7411 that becomes the floor, and you -- and BACT says let's keep raising the bar.
But when there isn't a standard under 7411 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 is you want to get in there at the beginning when the source is first being constructed, so that they don't lock in old pollutant -- pollution-causing technology.
They have got to meet Best Available Control Technology.
Chief Justice John G. Roberts: About the 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 NAAQS.
You know, 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?
Donald B. Verrilli Jr: Well, it's an evolving process, Your Honor, and there are now 140 or so permits that have been issued applying BACT to greenhouse gas emissions.
There is some very helpful discussion of this kind of specifics in two places: The State Respondents' brief, pages 35 to 39, and the Calpine amicus brief.
Calpine is a major utility, regulated--
Chief Justice John G. Roberts: All right.
But am I -- am I right because the greenhouse gases do not affect ambient air quality in a way that the current or the NAAQS provisions do?
I mean, you're dealing with regulation of energy usage, right, as opposed to emissions of lead, emissions of the other NAAQS provisions?
Donald B. Verrilli Jr: --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 -- that sort of thing.
Chief Justice John G. Roberts: The same sort of thing as with, for domestic uses, the energy efficient light bulbs?
Donald B. Verrilli Jr: Well, I really don't think this is about light bulbs, Mr. Chief Justice.
Chief Justice John G. Roberts: No, but my point is it relates to energy consumption as opposed to particulate emission.
Donald B. Verrilli Jr: At the -- 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, is as technology advances and better options come on line, that allow for even greater control of the pollutants, the statute requires that they be incorporated.
That's how it's supposed to work.
Chief Justice John G. Roberts: If you -- if you regulate -- I'm talking about your two distinct arguments in your -- 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, my understanding, it gets you to 83 percent of the greenhouse gas emissions.
Donald B. Verrilli Jr: That's correct.
Chief Justice John G. Roberts: Prevailing on the second argument gets you to 86 percent.
Donald B. Verrilli Jr: That's correct.
Chief Justice John G. Roberts: 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, you know, regulating the high school football game and -- and what-not.
Donald B. Verrilli Jr: Right.
Just an aside on the high school football game.
Human beings are actually net neutral on carbon emissions, and you will 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 -- with respect to the question--
Chief Justice John G. Roberts: The lights at the game.
Donald B. Verrilli Jr: --The lights at the game I don't think would be a problem, either.
But anyway there obviously is -- and EPA has acknowledged that there is -- 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 to 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 -- the American Chemistry Council have advanced and even that Judge Kavanaugh has advanced would require an invalidation of or at least a significant, a significant revision of EPA's 34-year understanding of the meaning of the phrase “ any air ” pollutant
"in 7479(1), which they have always interpreted to mean any -- 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 to -- you've got to change it. "
Justice Antonin Scalia: Yes, but the 34-year agency interpretation is not a statute.
Donald B. Verrilli Jr: No, it's not, Justice Scalia, of course.
Justice Antonin Scalia: And you are -- you know, you are saying oh, rather than alter our 34-year interpretation, we're -- we're going to revise the provisions of the statute.
I don't think that's a -- that's a good trade.
Donald B. Verrilli Jr: Well, I -- with all due respect, I don't think that's what the agency is doing and if I may, just, let me if I could just sort of finish off this.
The problem is that if you take the -- if you draw the line either at NAAQS 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.
Justice Samuel Alito: Can I ask you this question about -- can I ask you this question about EPA's position?
Because this is something I don't understand.
On the one hand, 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?
Donald B. Verrilli Jr: Yes, they did say that.
Justice Samuel Alito: On the other hand, EPA says, but that's what we're going to aim to achieve at some point down the road.
Donald B. Verrilli Jr: No, that's a fundamental misconception, Justice Alito, and I would like to try to clear it up and it goes to -- I'll try to answer Your Honor's question as well, Justice Scalia.
What EPA's 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 Dunkin' 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 used to decide who's eligible for a permit.
They're looking to change those, to the extent they can, consistent with their statutory authority and appropriate Chevron deference, to substantially narrow the numbers of people who will be deemed eligible.
And that's in particular--
Justice Samuel Alito: And then they're never going to get to the statutory thresholds.
I thought EPA said well, we're going to work toward that.
Donald B. Verrilli Jr: --No, this is -- this is to try to get to the statutory threshold.
Well, let me give you an example of the main -- one of the main ways--
Justice Samuel Alito: Well, that's -- then I don't understand the position.
If -- 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 -- get to the statutory thresholds, will it become more recognizable at that point?
Donald B. Verrilli Jr: --Under the point -- the nuance there, that I think answers Your Honor's question, is that there -- 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 facilities operating 24 hours a day--
Justice Stephen G. Breyer: But then they'll -- then they'll be back down to -- to 41,000 people fully within this.
And when you get to Number 5, Title V, 6.1 million, that sort of changes what -- I mean, if that's the question, does, in fact, this provision give the EPA the -- the obligation to impose permit requirements on 41,000 businesses of a size that really are -- constitute, at most, 10 or 15 percent of the problem, well, that's -- that's pretty hard to accept.
Donald B. Verrilli Jr: --Well--
Justice Stephen G. Breyer: What I thought the question was, was whether EPA had the authority to implement this in a way that EPA itself thinks make 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.
That did seem to be the way they put it.
Donald B. Verrilli Jr: --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 -- if you apply the standards EPA uses now, you sweep in all these people, and EPA says, well--
Justice Stephen G. Breyer: Are they going to get some new standards?
But are these -- but the words they used in their opinion were streamlining.
Donald B. Verrilli Jr: --Right.
Justice Stephen G. Breyer: 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 under this because it just doesn't do very much good and it's expensive to administer.
That's how I read it.
Donald B. Verrilli Jr: That's correct.
Justice Stephen G. Breyer: All right.
Then my question is back, because you've been -- this has been very helpful.
I learned I'm not a net emitter of carbon dioxide.
Believe me, because that means I'm a part of sustainable development.
So I learned quite a lot from this and I'd like to learn one more thing, which is, look, 7411, remember what the Chief Justice 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 7411 is over there letting them do precisely what they want, why do you need this, too?
That's the part that I haven't got a clear answer to in my mind.
Donald B. Verrilli Jr: So the -- it's the reason I tried to suggest earlier, Justice Breyer, that the PSD program is supposed to work as a complement together with 7411.
For example, if 7411 now is being used, at least EPA's 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--
Justice Stephen G. Breyer: Well, put those all in.
Put those all in.
Write -- write complicated standards.
Write standards that have certain enforcement capacities and abilities.
Write standards that require you to get a PSD permit.
I mean, what's wrong with all that?
Donald B. Verrilli Jr: --They can do all of that, but the -- 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 under the EPA's 7411 program.
Justice Sonia Sotomayor: I'm sorry.
I just want to make sure that I understood correctly.
Under 7411, you can require a PSD--
Donald B. Verrilli Jr: No, you can set a national standard.
Justice Sonia Sotomayor: --Right.
Donald B. Verrilli Jr: But 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 the 7411 problem is that you've got to meet the 7411 standard in your PSD application.
Justice Elena Kagan: General -- general, if 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 100 and 250.
It's 10 times that.
Donald B. Verrilli Jr: I take that point, Your Honor.
I don't think actually think that's what EPA was trying to do.
I know it's been portrayed that way.
I think that they were trying to do the opposite.
They were 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-a-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 regulating.
That -- that's their objective here.
Justice Samuel Alito: Are greenhouse gases the only air pollutant for which EPA has the authority to change the statutory thresholds?
Donald B. Verrilli Jr: Well, I'd like to make a point, if I could, about that.
The real problem here is CO2.
Actually, of the other -- of the six greenhouse gases, the other five you could use the statutory thresholds on without difficulty.
It's the CO2 alone really that causes a difficulty.
Justice Samuel Alito: But could it do -- could it do this for another pollutant, something other than any of the greenhouse gases?
Donald B. Verrilli Jr: 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 permit when 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 emission, 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 circumstances.
Justice Ruth Bader Ginsburg: One of the things that EPA said in -- in the explanation of this rule is that EPA could say that PSD or Title V applies only to certain GHG sources -- it's been suggested that that's also the carbon dioxide -- applies only to certain GHG sources and does not apply to the remaining GHG sources.
But there didn't seem to be any follow-up of that idea.
Well, the way to cure it is carbon dioxide doesn't work, take it out.
Donald B. Verrilli Jr: But 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 to the heart of the problem.
And there really is an urgency here, you know, that's part of what's driving EPA in this situation, of course, is understanding that this is an urgent environmental problem.
It's the -- it is the gravest environmental problem that we face now as far as EPA and 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 hole deeper and we create an even greater threat to future generations.
And that really goes to--
Chief Justice John G. Roberts: I'm sorry.
I didn't get an answer to -- hear an answer to Justice Alito's question and I think it's an important one.
There are currently criteria pollutants under the -- 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 NAAQS 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 VERRI: Well, if you're -- if you're going to use the NAAQS approach and designate it as a NAAQ, as a NAAQS pollutant and pollutants, and that wouldinclude this standard.
Donald B. Verrilli Jr: But this is--
Chief Justice John G. Roberts: Can you public a NAAQ for greenhouse gases?
Donald B. Verrilli Jr: --I think it would be within EPA's authority to do so, but there are really significant problems with trying to regulate that way, and that's why -- but -- and -- but it's important to understand, Mr. Chief Justice, that the PSD program applies to more than just NAAQS pollutants.
It's -- it's any pollutant subject to regulation under the Act.
Chief Justice John G. Roberts: Okay.
Let's pick -- there is 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 thresholds for that new covered pollutant?
Donald B. Verrilli Jr: 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 permit in a year, that they could make a judgment comparable to the one they made here.
But it's -- that would require that confluence of--
Justice Stephen G. Breyer: But why?
Why does 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 classic example, one after another.
A statute that requires animals to pay 50 percent on the train does not apply to snakes.
I mean that's the most common thing in law.
So what's the big problem here that everybody seems to have, except me?
I mean, what's the big problem with writing an implicit exception so that you don't regulate tiny little things which no one normally wants to have regulated?
Donald B. Verrilli Jr: --If the Court were to do that, that would certainly justify the EPA's judgement--
Justice Stephen G. Breyer: And now, my 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.
Donald B. Verrilli Jr: --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.
Justice Antonin Scalia: General Verrilli, really, I don't have as expansive a notion of reading exceptions into a statute that are not there as Justice Breyer does.
But assuming, just assuming that you can -- 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 Justice Breyer's bubble gum example, yes, I suppose it -- would you have to make an exception for bubble gum 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.
And that's what is going on here.
There's -- there's -- 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 the statute that does not lead to that absurdity.
And I think that's quite a different question from -- from what we've been discussing.
Donald B. Verrilli Jr: --Two points about that, if 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 the so-called absurdity.
It doesn't go to the -- to the argument -- the Petitioners are making a far more substantial argument, that EPA lacks any authority to consider greenhouse gas emission under the BACT provision and other provisions, even for sources that have a permit for their 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 great 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 v. 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 choice -- and you can say the choice is between doing something sensible and absurd results.
But really, the choice is 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--
Justice Elena Kagan: And--
Donald B. Verrilli Jr: --about 15 percent of the sources.
That's really the choice here.
Justice Elena Kagan: --General, 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 mean 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?
Donald B. Verrilli Jr: Yes, that's exactly the argument, and I think that's exactly what EPA did when it reads Massachusetts v. EPA and its understanding of air pollutant and thought about that in the context of the regulatory goals of this program.
Justice Antonin Scalia: In the -- you know, the argument against that 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.
Justice Stephen G. Breyer: All right.
And the other is -- I mean, this is quite -- I see -- 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 there are written exceptions -- 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 to all.
Which is worse?
Is that a -- have I got it right?
Donald B. Verrilli Jr: I think that states it fairly.
I think that states it fairly.
Justice Antonin Scalia: I don't think so.
I mean, it depends on what you mean by “ unthinkable ”, General Verrilli.
Donald B. Verrilli Jr: I think that was Justice Breyer who said “ unthinkable ”.
Justice Antonin Scalia: --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?
Justice Elena Kagan: But isn't that the argument?
Justice's Scalia's alternative plausible interpretation of the statutes might have been an alternative plausible interpretation of the statute pre-Massachusetts.
But it no longer is; isn't that right?
Donald B. Verrilli Jr: That's certainly true, but it wasn't -- but it -- also, even before Massachusetts, it had -- there's significant problems with it.
Justice Samuel Alito: Here we have a statutory provision that has very specific numbers, and the agency has said these numbers are absurd.
We're going to multiple them 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?
Donald B. Verrilli Jr: Obviously, I wouldn't characterize it quite that way.
I don't have a case that's exactly on point.
I think Morton v. 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 statutorily entitled, and it made the judgments it made to try to get the program to work.
And I mean, if I could give you a hypothetical--
Justice Anthony Kennedy: What was that case?
Donald B. Verrilli Jr: --Morton v. Ruiz.
And -- and if I gave you a hypothetical on that -- if Congress enacted a statute that said that the -- 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 3 days, if a -- if an agency were faced with those kinds of obligations, and it didn't have the resources to get every container searched within 3 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 -- of the agency's charge under the statute; and that's essentially what the EPA has done here.
Justice Anthony Kennedy: 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 are not saying that?
Donald B. Verrilli Jr: 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 the 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 a situation in which if you are already subject to a PSD permit because you are emitting, say, a NAAQS pollutant or another one of the regulated pollutants, whether under Section 7574(a)(4), 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.
Chief Justice John G. Roberts: That's the 80 -- that's the 8386 question, right?
Donald B. Verrilli Jr: That's correct, Your Honor.
And so I think those things are different.
And so there really are three points.
There's 7411, there's triggering, and then there's if -- if you're already subject to the permit.
And the questions 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, EPA has been regulating since 1998 under the PDS 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 -- they are 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.
Chief Justice John G. Roberts: Well, that has local effects.
I mean, everybody knows there's smog in Los Angeles versus Montana, right?
Donald B. Verrilli Jr: Well, that -- well, if those local effects count, then certainly, greenhouse gases have those kinds of local effects, because they raise the sea levels, which cause flooding in certain places and they cause droughts in other places.
And so, to the extent you're talking about local effects, the greenhouse gases really aren't local.
Justice Antonin Scalia: Where have the sea levels risen other than Massachusetts?
Donald B. Verrilli Jr: Well, certainly Massachusetts, but -- but with respect -- but EPA has been regulating ozone-depleting substances since 1988.
Justice Samuel Alito: Isn't your argument Congress has acquiesced in that?
Donald B. Verrilli Jr: Yes.
In fact, we think in 1990, that they ratified it.
Because in 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 pollution -- air pollutants, which was another new category they created in 1990 for the PSD program.
Justice Samuel Alito: 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--
Donald B. Verrilli Jr: 2 years.
It was 2 years.
Justice Samuel Alito: --So was it a full 2 years?
Donald B. Verrilli Jr: I don't know if it was a full 2 years, but -- 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.
Justice Sonia Sotomayor: What's the -- I know litigants hate this question.
If you were going to lose--
Donald B. Verrilli Jr: --I knew you were going to ask me that question.
So I actually think, you know, as Judge Kavanaugh approaches the ACC approach, you know, we -- obviously, we're not endorsing this, but--
Justice Ruth Bader Ginsburg: There's a difference between them.
Donald B. Verrilli Jr: --There is a significant difference between them.
Justice Ruth Bader Ginsburg: So which one?
Either one of them?
Donald B. Verrilli Jr: --Well, I've got another thought on that subject--
--which is, as I said to Justice Alito earlier, 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 v. EPA compelled, but if the Court disagrees with that, it 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 NAAQS pollutants under PSD, 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 -- I'm not enforcing that, but I think that's--
Justice Ruth Bader Ginsburg: Well, what -- what about BACT for CO2, then?
Donald B. Verrilli Jr: --Well, no.
BACT would be -- that's just at the trigger, Justice Ginsburg.
Just at the trigger.
We think that the -- I just don't see, given that BACT says in unambiguous terms in Section 7475(a)(4) that anybody who's subject to a permit has got to meet BACT 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--
Chief Justice John G. Roberts: You've got to follow -- you've got to follow the plain text of the statute there.
Donald B. Verrilli Jr: --Well, if the command of the statute is that BACT applies for each pollutant subject to regulation--
Chief Justice John G. Roberts: Yeah, but the plan of the statute is 250 tons per year, too; and you've changed that to 100,000 tons per year.
Donald B. Verrilli Jr: --Right, but I think--
Justice Anthony Kennedy: And you were going to get to 7475(3), (a), (b), (c) on that point.
Donald B. Verrilli Jr: --Well, 7475(3)(c) also does say that if -- if EPA does set a greenhouse gas standard for a particular stationary source like power plants, then that becomes a condition of the permit.
That's what (c)(3) says.
And so between (c)(3) and BACT, greenhouse gas -- assuming that EPA acts under 7411, those, 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 in trying to faithfully answer Your Honor's question, that's what I think.
Justice Sonia Sotomayor: --I just want to be clear.
Your reading or -- or your suggested out would mean that -- that only the major facilities as defined now essentially would -- would--
Donald B. Verrilli Jr: --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.
I'm just saying--
Justice Sonia Sotomayor: --Well, Justice Breyer said the difference between 83 percent and 86 percent, that 3 percent difference of who you're covering is thousands and thousands of people.
Donald B. Verrilli Jr: --That's correct.
Justice Sonia Sotomayor: Or entities, I should say, not people, of institutions.
Is that going to be the same under the reading that you are proposing?
Donald B. Verrilli Jr: 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 NAAQS pollutants, but to the other non-NAAQS pollutants, sulfuric acid mist 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.
That's, I think, the -- the rifle shot solution, to the extent that the Court thinks it's a problem.
Justice Ruth Bader Ginsburg: Well, 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 Kavanaugh approach.
We're going to say those are choices for EPA to make.
Donald B. Verrilli Jr: Yes, certainly that's right.
Certainly, that's right.
But I think the -- the argument that, as I -- as I read Judge Kavanaugh's opinion and as I understood my friend's argument on behalf of the ACC, was that the statute essentially compelled the conclusion that you had to pick one or 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-NAAQS pollutants that EPA has regulated for years and used as a trigger for years to require PSD permits, which you would be at risk of excluding from the program if you were to adopt the ACC or the Judge Kavanaugh reading as triggers, and that's a problem that, it seems to me, the Court ought to be thinking about trying to avoid.
Justice Anthony Kennedy: I have to say in reading the brief for the States and reading your brief, I -- I couldn't find a single precedent that strongly supports your position.
Brown & Williamson I think is distinguishable for the reasons set forth in the reply brief.
And what are the cases you want me to cite if I write the opinion to sustain your position?
Donald B. Verrilli Jr: So at the -- at the -- sustaining the argument that the trigger applies here, I do think there aren't -- there's aren't a lot of cases.
This is not a -- a situation that arises very often.
I think Morton v. Ruiz comes the closest.
Chief Justice John G. Roberts: But that's not cited in your brief, is it?
Donald B. Verrilli Jr: --No, it's not, Mr. Chief Justice.
It was cited and relied upon by the EPA in the rulemaking proceedings and rulemaking opinions.
So if I could just sum up here.
The EPA did what it did because the problem it's confronting is a problem that EPA considers to be urgent.
Justice Samuel Alito: General, I don't want to interrupt your summation, but on the -- let mejust 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 permitting process would be entirely different for greenhouse gases because it would make no sense to require monitoring of local air conditions and -- 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?
Donald B. Verrilli Jr: You know, I'm glad you raised that, Justice Alito.
That's actually quite important.
That's just not right.
I mean, if you think about it in multiple ways, there are multiple pollutants that are currently regulated under the PSD program.
Some of them have National Ambient Air Quality Standards, and the local testing makes sense for those.
Others don't have National Air Quality -- Ambient Air Quality Standards, like sulfuric acid mists, for example, and others.
There aren't standards for those.
And the way EPA has handled that is they 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 NAAQS or related standard.
So they're 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-NAAQS substances, for example, sulfuric acid mists, 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-depleting substances, that is how it has always worked at the State level under the PSD program.
You just -- you look at what the BACT emissions levels.
You try to get them down.
And so you're not treating greenhouse gases any differently than sulfuric acid mists or ozone-depleting 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 -- 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 was all about.
And so -- and you regulate those pollutants also through the PSD program.
And so 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, in conclusion, why EPA did what it did, it is because this is an urgent problem.
Every year that passes, this problem gets worse, and the threat to future generations get worse.
And I think, faced with the obligations that EPA had, it made the most reasonable choice available to it.
Chief Justice John G. Roberts: Well, you've got five extra minutes, to be -- to be fair.
And one thing--
Donald B. Verrilli Jr: You should have told me that before my summation.
Chief Justice John G. Roberts: --You had already gotten going.
I didn't want to disturb -- you don't think that greenhouse gases should be regulated at the 250-tons-per-year level, right?
You said Congress did not intend that, and it would be absurd.
Donald B. Verrilli Jr: Yes.
Chief Justice John G. Roberts: So what level do you think they should be regulated at?
In other words, 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--
Donald B. Verrilli Jr: --Well, I think--
Chief Justice John G. Roberts: --other than -- since it's not 250?
Donald B. Verrilli Jr: --You would 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 what Congress is trying to do is to impose these obligations on facilities that are capable of responding to them, that are 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 EPS a trying to do.
Justice Elena Kagan: Could I -- sorry.
Trying to understand that.
Would you pick the number that leads to the same class of emitters?
Is that the number you would pick?
Donald B. Verrilli Jr: I'm sorry, Justice Kagan.
The same class of emitters as?
Justice Elena Kagan: As in the more typical emissions context.
Donald B. Verrilli Jr: It might -- I don't think it would--
Justice Elena Kagan: --captures a certain set of emitters.
Are you essentially looking for the number that captures the same class of emitters?
Donald B. Verrilli Jr: --I think -- I don't know that it will be the same, but I think it'll 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.
Justice Ruth Bader Ginsburg: Well, how did the EPA come at -- settle on the number?
Donald B. Verrilli Jr: Yeah, they tried to explain that in -- in one of the rulemaking orders, and I think what they did is to try to figure out the right balance point where they were accomplishing very significant emissions limitations while not sweeping in sources that were -- that very large number of small sources that were going to only make the incremental -- an incremental difference.
And what EPA did was say, essentially, we can get to 85 percent of the emissions we're trying to get to by setting the standards where we've set them.
Justice Stephen G. Breyer: Why -- two things.
One is, you haven't said anything about the Title V problem, which they said was at 6.1 million persons or individuals or, you know, businesses coming into it.
So how do you get them out of that one?
Donald B. Verrilli Jr: Well, I think the streamlining.
Same idea, I mean--
Justice Stephen G. Breyer: It's the same basic point.
Why -- there would 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 money where it will do the most good.
And so why wasn't that -- no one's really argued it--
Donald B. Verrilli Jr: --Well, I--
Justice Stephen G. Breyer: --I just wondered.
It's sort of like the missing--
Donald B. Verrilli Jr: --There would be a helpful point for us, but for this, and then I'll tell you why -- explain why we didn't, because there is a citizen suit provision in the -- in the law.
And so the -- that's what they'll tell you on rebuttal.
Justice Stephen G. Breyer: --Yes.
Donald B. Verrilli Jr: And so, I think that's the reason why because it's subject to a citizen suit, whether we exercise our--
Justice Stephen G. Breyer: In other words, you would be out of it totally, and any citizen could go bring a suit and say where is your permit?
Donald B. Verrilli Jr: --Right.
Justice Stephen G. Breyer: I see.
Donald B. Verrilli Jr: No further questions?
Chief Justice John G. Roberts: Thank you, General.
Mr. Keisler, 5 minutes.
REBUTTAL ARGUMENT OF PETER KEISLER ON BEHALF OF PRIVATE PARTY PETITIONERS
Mr. Peter Keisler: Thank you, Mr. Chief Justice.
You had asked the Solicitor General what would BACT involve 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 be worth the burden in terms of the payoff.
But the fact that they are talking about it in that level of detail brings it into sharp relief when applied to which GS which is not about adding technology to control the stuff that comes out of smoke stacks is pervasive of an industrial plant's operation and asking the 90 State and local permits authorities to decide what needs to be done and that's what is so different between this and the NSPS program which functions by setting emissions standards.
Justice Sonia Sotomayor: 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 into compliance under that?
Mr. Peter Keisler: 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 cafeterias.
But it is 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 there is a selectivity what the agency considers ambiguous and unambiguous.
It 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 that 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 perceived it here has arrogated 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 have proceeded here as if we are defining that particular word in the statute but here is another way to think about the interpretative exercise here and that is Brown & Williamson.
Brown & Williamson started with the assumption that the encompassed nicotine and cigarettes but then it went on to say that giving the FDA jurisdiction under those programs under tobacco would be inconsistent with the regulatory structure.
When it did that it didn't go back to those definition and say we have to figure out which word in that definition means something different than what we originally assumed.
It says that the interruption as a whole conflicted with the statute as a whole and that was sufficient.
We think the same is true here.
If the Court has no further questions, I thank the Court.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.