responsibility for the more serious problems. no, i guess the point of your question would go to the fact that even among states that were operating under constant cost control threshold's, i state that had faugh already implemented cost measures up to that limit might have to do less in a sense because it wouldn't already taken the steps that were required, at least as compared to an air quality on the threshold. >> i don't mind the state doing less. i think north carolina showed that you can use those cost figures to do less. that is not challenged here. but what the application of the cost factor means is that some states that can more efficiently make the changes will be required to do more than merely

account for their proportion of the downwind arm. isn't that true? yes or no? a think it is an easy answer. >> i think if you adopted an air quality on the threshold would be more likely to be the case this states that have already done a lot to control air pollution would have to take additional steps, even if it was done in a non cost-effective way >> you answered my question. does the fact that you begin with -- the statute says that each upwind state has to account for its effect on the downwind states. but once having identified that affect you then say, those upwind states that can make the reductions more efficiently have to make more reductions than the

mere proportion of the harm requires. isn't that so? >> i think it would be the case, yes, as compared to some air quality on the measures, the use of cost will have the effect of distributing the burden in a somewhat different way than it would if you considered air quality factor -- >> mr. stewart, the states that are required to do more are the state's that are much more ready >> that's correct. that's what i was trying to get out earlier. it states have to do less in order to meet the -- to be in a position where they implemented all the emission control measures available at $500 per ton, if a particular state has to do less in order to achieve that is partly because that state is already implemented those measures. >> in what provision of the statute allows you to take that into account?

>> the term -- >> as opposed to each state, whether it is inefficient or efficient as to merely reduce its contribution to the downwind state pollution, right? that is what the statute says. >> the statute says that the state will adopt measures that prevent sources within its borders -- from contributing significantly to downwind nine attainment. the purpose of the provision is not to allocate plan for an existing state of non attainment or prior pollution but is to devise a scheme that, going forward, will prevent on attainment from occurring. the idea is, if each save lives up to its obligation and if the downwind states make commensurate commitments and the problem will be solved. in terms of the language contribute significantly. there are various reasons to think that epa recently -- reasonably construed that term to include a component of difficulty of achievement. that is, in common parlance we

might say that tacking a basketball is a more significant achievement for someone who is 5 feet 10 inches than someone who is 6 feet 10 inches. a $100 charitable contribution is more significant if it is made by a person in next $10,000 a year than a $1,000 contribution by somebody who makes a million dollars a year. ..

>> with people would have contributed to this significantly. but to set out a hypothetical that involves the, if you had a basketball team that lost the game by one point and the coach was asked to pinpoint what contributed to the defeat, they are much more likely to identify this layout than a turn or what at the buzzer. the true figures that the half court shot would contribute and that it was part of a cause. and the outcome would've been different. but if you're talking about significant contributions to adapters all, people are more likely to focus on what should have been avoided and not simply the failure to accomplish something that is extraordinarily difficult. >> it depends upon a time at which you measure. that is to say that if you take a look at a state, which for five years has been trying to

enumerate and eliminate pollution coming you can measure it. and if you do that we were not having to contribute more. or do you not like that? >> i don't want to go there in that. but the point at which the state have this obligation is triggered by the promulgation of a new national air quality standard. the state has required within three years to promulgate a state plan that includes a good neighbor permissions for this. >> how far back you go? 2006? >> in this case there were two that were, created in 1997 area one of them annual particulate matter and the other one was 2006, that was for 24 hour

particulate matter, which is harder to achieve. and so when we are asking what are the states supposed to do at the time that this is promulgated. the states don't exactly get credit for what is done in the past. then as they can do less than what they were supposed to do in the future simply because they have done a lot in prior years to prevent pollution. but the fact that sources within the state have in the past install various pollution control devices, they are using cleaner fuels to prevent significant contributions to this and it's very important that we understand the pros and cons going forward. >> i would just like to say that we have this trucking

association decision that we say notwithstanding that everyone agrees that regulating the cost is better. when congress that the opposite, we have to go with the opposite. and then we said that congress had set the opposite because they talked about protecting the public health with inadequate safety. so what does it take within the statute to make a they the congress have demanded that the regulation that occurs, in other words, congress has demanded that the regulation has occurred in a fundamentally assuming way. >> it is not the case that requires epa to establish this without reference to cost with the silly result.

and the quarter in the same case says that of course you can consider cost in deciding what is the most efficient and appropriate way to him implement that. so here i take your point that in order to conclude that congress barred consideration of cost at the implementation stage, we would have to have very clear language and significant contribution doesn't do it. so the other thing that i would say in addition to the examples i have given is reduced significant and it's worth emphasizing that it is designed to help allocate this among different actors. so for example. >> the problem is that the allocation among different actors in this includes

determining who will do a lot, which simply eliminates the requirement that each state not be required to do more than its share of the pollution that is causing downstream. it is a state-by-state requirement that makes it very difficult to think that all congress wanted was the most efficient production of pollution no matter where that came from and that simply is not what is -- you envisions. >> maybe that would be a better stature. maybe it shouldn't be state-by-state. >> we can accept the premise that it should alleviate no more than its share. in each state should do more than its share, and yet there still may be different ways of determining what the states are sure it is.

one way would be to determine this, and say that the more pollution than had previously flowed, the greater the reduction would be in the future. another would say that in order to ensure each of the state and this includes the generation of electric power that requires the omission of some level. that there was simply no way to generate electricity for any technology known today without generating and committing that minimum amount. so i would say that congress didn't intend to bury in the provision this particular state generating electricity. and they could reasonably determine that the unaffordable,

unavoidable provisions, even with the best possible pollution control technology, that would be regarded as legally insignificant. the only legally significant contribution would be contribution that could've been avoided. clearly the epa has gone one step further because it hasn't just focus on emissions that couldn't be avoided at all. the lease without forgoing electric power. it has said that we will treat as legally significant only the extra increment that comes after we have taken what we regard to be equitable and cost-effective pollution. >> your answer to her question, there is at least a possible argument that you regulate into account from doing so. and you even stop short of that

because he said it might be difficult to apply cost rational the implementation stage and i think that is what he said. >> what the court said is that in setting this up, the epa not because the statute said this in so many words with what they had to achieve simply couldn't be reconciled. so i'll though you cannot consider this an determining what this act will be and what the air quality standards will achieve, you can and should consider the cost in deciding what implementation should be used to determine what emissions will be reduced. >> why couldn't congress have said that the epa shall prescribe minimum pollution reduction emissions that have to

be taken in this way. that's a quite different statute from what we had before us. and you are saying you will reduce this much, as much as efficiency will allow. or else you are in violation of good neighbor rule. and that is a very different statute from what congress wrote. maybe it is a good idea and they controlled all efficiency measures for reducing pollution. but it's not the statute that congress wrote. >> three things in response to that. the first is that as i mentioned before, the good neighbor provision is addressed in the states initial obligations to submit this plan that contains these provisions. so if the court says that the cost cannot be considered in defining these contributions, the effect is not that the epa

can't consider that factor one steps into the states she was but that they can't consider cost of achievement in attempting in good faith to implement its own good neighbor provision. so the second thing i would like to say. >> i don't understand that. we say that again. >> we are dealing here with a situation where the epa was the one who promulgated this. but that is only because the states did not discharge their obligations state implementation plans that include the good neighbor provisions. but this contributes significantly in the portion with what a statement is supposed to contain. not by its terms that is addressed directly to the epa. so if they said in defining the significantly, we cannot take into account the cost of omission control measures.

that would mean that they cannot just consider that when they step into the state choose but also the they can't consider that factor as well. >> of course, you couldn't come up with your budget. at a different point in your brief you emphasize how incredibly complicated it is for states to determine how much they must reduce their emissions to take care the fact that they significantly contributed to downwind pollution. this includes the burden of program without knowing how much we expect them to meet. >> the statute that imposes the obligation on the states. it may help to draw the courts attention to the relevant provisions. in this includes the

government's opening brief. >> the relevant provision in seven foreign 10, saying that each state shall adopt and submit to the administrator of the epa within three years that they may prescribe after the promulgation of a national ambient air quality standard and a goes on to say a plan that provides for implementation and so forth. and you look at the top of this it says subsection two begins each implementation cemented by a state under the chapter shall be adopted by the state after reasonable notice and public hearing. and each plan shall. then if you look at the bottom

it contains adequate provisions consistent with the provisions of the subchapter and any source of other type of omission activity which will contribute significantly. >> okay, so if you are working for one of the upwind states and facing the three-year deadline than what would you told have told the state to do? >> certainly their basic methodology of using the cost threshold had been embodied in this in 1998. which i believe was promulgated in 2007. >> that's right. ahead of this comes to you and says, how much do we have to reduce our emissions to satisfy her arm and. and he would tell them what. >> we would tell them that we don't know yet. but that is not a fatal flaw in the argument.

it is inherent in any legal contacts in which one person acts in themselves on transit in person reviews. and so it does point. >> that kind of glosses over the fact that as you said elsewhere that this is your analogy, a spaghetti matrix or something. and there's no way for them to know how much you expect them to address and you're saying that you have to do it within three years or we are going to take over responsibility. >> certainly what the epa was called upon to do is far more complicated than what pennies he was going to be called upon to do. they were promulgating this for close to 30 states and plans are different for that. and i cannot just address the

second thing? i don't think that's right. i think they have a different way of dealing with it as a group that any individual state has no idea what particular role is going to be in your group resolution. >> it certainly has the data available to it that the epa had available about how much did each state contribute to the overage of various nonattainment receptors in the past. >> i don't know how it could sensibly designed. >> the other two is the state's role to devise this and not

necessarily to predict just how the epa would do it if the task went to the epa. so for example when the states are undertaking a more prosaic task of devising plans that would produce attainment of this within their own borders. so they have to make a variety of judgments about what sources should be allowed and in what amounts. if a particular state just didn't do it, that task would fall to the epa. and it's very unlikely that anything that this particular state would come up with would exactly match what the epa would ultimately divides. >> can you give us an example of one epa has done us in the past? and we are a crucial element of this has not been defined by the agency. and yet they nonetheless require the states to put together this

without knowing what their target is. and this includes were states successfully did comply with the good neighbor obligations with what they had done the thing that was enough. >> that means a pin the tail on the donkey. from that doesn't prove anything. i want an example of another instance in which the epa has said we are not going to tell you what the target is. it is up to you.

>> we didn't fail to divulge the information that they have at its disposal. at least in the one of the cases, the states were capable of carrying out this task in this includes with the downward states have had to do all the time. if the new york officials are trying to determine when this comes out and how can we bring our own error all of you into compliance and what controls we have to place on our own sources in order to get air quality to

the desired level. >> the new york officials have to take account of the degree of pollution that is likely to travel to their borders from other states. within their own borders they have to consider what this. >> that means that there's a fact that they don't know and it's not just about the facts. we don't know what target we are expected ahead. >> the final thing that i would say even if you determine that it was just practically infeasible for any state to adopt a compliant state implementation plan with good neighbor provisions for this. and this includes that they

would still wouldn't follow. that is that the statute in the provisions that i pointed to said that it's up to the dates in the first instance to devise that the state implementation plans, including the good neighbor provisions, of the same profession, the statute describes what happens if a state fails to satisfy that obligation. and this is at the beginning of this on page 10. it says the administrator shall promulgate a federal implementation plan at any time within two years after the administrator finds that an administrator has failed to make it required submission or finds of the plan or plan revisions submitted does not satisfy the minimum criteria. >> the government conceded that there was a theoretical possibility that some states could be over control.

and that they would be implementing measures that would reduce their contributions to pollution below the 1%. and assuming that there is a theoretical possibility of that. but that your coach was basically fine. so what would we do about that? personal, are there measures that states can take to get out of this event if it is inappropriate to them due to over control? and if not, how do they do and what is the process of we is that there is this. we vacate the rule, to be we been in place, what do we do? and what is our power to do it? >> if you reach the conclusion that there was a dear radical possibility that this could do it and it would be a problem if they did, that the methodology

used by the epa was on the whole rational come i think this task for it is to rule on the more big picture of objections and the court of appeals ruling on it. even if we win everything that is at issue, the case is not over. there is a variety of the details of the rule that the dc circuit found that to address. simmons case would be re-mandated in there would be an opportunity for the court below to consider those. >> would that have been done? >> to the extent and i don't know that it has applied this, but to the extent that annie's date has a properly preserve challenge to the effect that it is actually likely to be subject to over control.

and that could be heard by the court of appeals and the court of appeals could determine both whether that is right to happen and if it does happen, that would include arbitrary and capricious as to that. but the real problem with the court of appeals methodology is that it that that the fact that the epa cannot absolutely rule out the possibility that it might happen with a rule invalid on its face. unfolding to the ensure that it regime would not lead to over control. and i think that is an extraordinary standard for an administrative agency to deal with area that includes the federal agencies regulate to address one problem in the regulation necessary as spillover effects on other conduct. so if a federal agency was tasked with preventing the interstate commerce of contaminated food, and my wire

inspections or a recall of food after one item had been shown to be contaminated in these measures might have spillover effects on food that was not in fact contaminated, but that would not be part of the rule. an agency could go overboard and impose a regime that was so onerous in comparison to the health benefits than it was arbitrary and capricious. it on whatever say that it is the duty of the agency to ensure that there is no other means of achieving this at lower cost to the public. this includes a state that believes itself to be inappropriately treated by the rule is to preserve this challenge it may have been the judicial proceedings. there is also a mechanism by which a state can have this plan replaced by a plan of its own

devising. so the consequence of the state's failure to achieve the good neighbor obligations in the epa stepping into their shoes, it's not that they are forever barred from devising their own plans. but it's that it was simply that the federal implementation plan would remain in effect for a limited period of time subject to replacement by a state plan. >> if we were to affirm the decision, how long do you think it would take to get a new rule in place? >> if the court affirms on the ground that the epa may not consider a cost, part of the problem, i think it would be an extraordinary undertaking for them to try to achieve. part of the difficulty here is that nobody has identified a concrete alternative. that is a plan that would not consider costs that would

disperse the burdens of compliance among the states in proportion to their prior contributions and would also address the nonattainment problem. >> could you explain that to me? are you saying that street approach that was applied in the circuit, are you saying that that is impossible? are you saying that it is complicated and the? >> the least what we understand is that it might be possible with respect to any particular downwind receptor because you could say that if one state is contributing this and another a part of this, the proportional solution might have been to require any necessary reduction would be in those proportions. that one state would do two

thirteenths of the reduction in another would do for 13th and so forth and so on. that would be theoretically possible with perceptiveness. that with respect to another, the same states could be contributing in different proportions and so there could be no way of devising a solution that would be proportionate to both. >> you could average amount, couldn't you? >> you might be able to average the amount. >> i don't think that's any more rational than picking a number as to who can do it more efficiently. >> the purpose of the cost threshold would not be to increase or decrease the total amount of reduction reductions that would be necessary. but to ensure that the reductions that had to take place were done in the most cost-effective manner possible. >> we understand that. but that is certainly a pretty arbitrary number.

and i think averaging from the receptors is certainly no more arbitrary. >> i think the cost methodology is one of the epa had used often in the past. indeed even before the term was added in 1990. the epa had interpreted as to allow relief for a downwind status and upwind state was contributed significantly to downwind pollution. it had been interpreted as allowing consideration of costs and compliance. to one of the ironic things about this case is that the only consequence of over control is cost. that is that this is not a situation in which there is a distinct public health benefits -- or public health problem, i'm sorry, it is cause at power plants are admitting too little of this. the only reason that people worry about the over control and reducing emissions more than

they need is that it costs money and if that is a problem to be avoided coming in strains of epa can't take account of it. >> if you have something to say what he started out with, you said that there are three aspects. the first is that you cut out any state that is contributing less than 1%. use of the second half at was that user metric of this produced a new applied that as well. and then he said there were three. that we never got to three courage i want to make sure that you do. >> the third part of the process is that once each state budget has been quantified with respect to each state, the epa essentially divides up the missions allowed within the different states orders. in the way that it does that is that it gives allowances to the

various power plants that added to the total numbers of tons of pollutants that are allowed to be emitted. so it is important to emphasize that the states have not joined the industry's argument on the other side of the case. stating that costs can be considered. those states are not correlating with the methodology in which they contemplate the budgets. they are simply saying that once would have been modified from initiative and given an opportunity to determine on their own how they should be allocated without the epa doing it first. so in some situations that might have been a rational way for them to proceed. so once they find a particular state has failed to submit this or the epa has disapproved it, i'll untie happens the statute says that at any time within two years they can promulgate its

own federal implementation. in some circumstances it might be rational or them to wait a full two years and give additional guidance to states to give them every opportunity to devise a plan plans. and they're basically two reasons that they didn't do that here. the first was the subject of the dc circuit's mandated in north carolina that site get something in place that works as soon as possible and the eta felt constrained by that to act as quickly as it could. and the second is worth emphasizing his that there are sovereign interest on both sides of the case. that is true that by devising a federal plan in the first instance, the epa has intruded to a degree on the ability of the upwind states to decide how missions allowances should be allocated among their own sources or that the downwind states are subject to their own obligations to comply with their own borders to the extent that they can't get relief from the

upwind state, their task has been made more difficult. >> i'm sure should notice. but if we reverse the dc circuit, what would happen going forward? the states have had this time to do this and they were found not to comply. so the epa does that. but that is not the end of the game, isn't? is that under a continued obligation to look out and give the states further opportunities to come back? >> the states, it's unclear as to what they have been working on, but the state certainly code under the terms of the transport rule proposed state implementation plans to replace this. and this court's decision would affect the way in which both the states and the epa went about the business for how they should

be carried out with the spec to the future. >> thank you, counsel. please give us 30 seconds or so. [inaudible conversations] [inaudible conversations]

[inaudible conversations] >> mr. chief justice, the epa's actions have written this out of the air and the epa cannot impose this on the states when epa has left him completely in the dark about the meaning of the phrase contribute significantly. they require the states to submit this i can only guess at how they will quantify the good neighbor obligations under section 7410. >> it certainly is hard. but it is what the statute says. and it seems to me that the epa, if they had taken a different view, it would've been contrary to the statute. >> in some awful for several reasons. they represent a capricious change in the way that the agency has interpreted the statutory for 15 years in 1998,

the epa told the states not to submit this before the epa have quantified this. and they were gated that numerous times. including pages nine and 59 of our brave and also in the sources of the dc circuit site on page 51, 52, and 56 of the appendix. the epa has now done a 180-degree shift and they have told the states of their required to submit this before epa has codified their obligations. >> they don't know exactly how to do it. this is a tough problem. and so it sounds as if what you're making is a procedural objection to which the government's point was. and you are right, we have all been talking about this. we wanted to see what the state to come up with. so we looked. they haven't come up with enough

and so now we go to the federal process. and then you comment on that. and if you feel that this is no bid, propose your own solutions again and that is what he is saying. but suppose to advance the ball. so there's a procedure for them to come up and so do it. so what is arbitrary or capricious about the system? >> that is what they rejected. >> they did it once, and now they think it works here. all the time it happens that people change their minds about how problems are best called or they solve this better one way or another way. so if your only point is that they did it a different way, they will say what is unreasonable about changing our ways. we are trying to get the job done. the epa is allowed to change their interpretation of the

statute. but if they're going to do that, they have to acknowledge that they are abandoning this higher construction. >> years before they had rules. one day they said no, we think we >> it's different if you think the duke it out with them in terms of where you think they are wrong. and are you challenging the

transport rule using cost, or are you just challenging the process in which that was achieved by matt because if i understand this and the theory of that, neither of you would want a command-and-control regulation. >> we did not have the ability to do this on costs. >> for some of them it would really be a bad idea. >> the we are remaining agnostic on that point. >> until you propose replacing this, the fip, you are bound by that julian pooped out.

how long is such a transaction normally take women's. >> it depends. >> the think that is a composed process? >> you will develop that and it will take you some time. and then that is submitted to the epa and they chew on it for as long as they want. and maybe they will say it's good enough and maybe they won't. >> we are still waiting here on what we have submitted to implement the good neighbor obligations and at least if you have propose this, you have given reasons and you have a rational plan and the epa must then give a reasonable response to it where as if they are the first one, they are riding on a black slate and it seems to me that in some respects epa is more constrained than this process to which you object.

>> there is still a unlawful use. so why is this unlawful in the first is that they have changed their interpretation, epa tells the states that we do not want you to submit this. it simply takes a guess at what you think that it is. so when they say that, that is an affirmation in the statute does not require you to do that. is that your point? >> they said they are adopting this that prohibits us from doing that. the epa and only the epa is the institution that is charged with the responsibility of quantifying this obligation. they had argued for a different

approach back in 1998 and we wanted to have the proper to the tide what the obligations mean and they said no. and they said we are the sole entity and you need to wait until we quantify the obligations. they have now change that approach without explaining work knowledge in this that they weren't abandoning the earlier interpretations. >> they were not doing that. part of that was them saying they had to quantify it. >> what they says that they have to quantify the good neighbor obligations and what it means to contribute significantly. and that leads to a second statutory problem. and they had to take a wild

guess that compels the states to over control and overregulate. because if they want the epa to approve this, and they don't know what would be, they have to overshoot and over control and overregulate. and this includes imposing this. what they are doing is telling the state rather than giving the state the opportunity to distribute the regulatory burden as it sees fit. >> i might not be understanding you. but this goes back to the question. the statute says after the standards originally promulgated, the state gets three years to make its best hedge and the administrator shall promulgate this at any time within two years after

that. so presumably there are lots of conversations that can happen between the epa and the state, and sometimes one of those conversations happen and sometimes less of those conversations happen in but i don't see that as different constructions. it seems that you go first, you do this within three years, and then we have to do it within two years. it does have substantial discretion under the statute as to what kinds of conversations it wants to have one within that broad structure. >> i agree that they have that discretion. the problem is in 1998 they asserted who says interpretive authority, which is the good neighbor provision of the clean air act and they say that the epa is the institution that must quantify it. until the epa fills in the blanks and tells the state what

this means. the epa could have taken a different approach. they could have told the state that you can take the first crack at the signing what this means and we will review your submission and approving or disapproving. but what they said 50 years ago is that the state the way for the epa to occupy this. once they assert that those of interpretive authority over the provision, the state have no obligations to guess at what the epa may do in the future. and that leads to a second independent problem with the epa transport rule. because the epa had no way to impose this federal implementation plans for the 1997 standard. on the 22 states that already had the epa approved fip's for those standards that haven't some of them challenged at a method in a pending matter why should we be looking at that

issue here when states have challenged that. >> three of the states have challenged a. >> i don't know why the rest of them. the three of them have. so why should we enter the fray anticipatory way. is that an issue that we should wait and see what the epa says below imax. >> the united states is suggesting that we are somehow watching improper collateral attack. because they could have a failure to submit. >> this is a discrete question that they have already proved. three states have rav challenge the fact that they shouldn't be required to meet a new standard because their party had one approved. so that seems a discrete challenge and three states have undertaken a. >> i don't know why, but that is a different issue. even though it has, wouldn't it be more prudent for us to wait

for that administrative process to finish before we venture into this question. >> i don't think the courts are right. the issues that were raised our discrete from those three states in their separate proceedings. the argument we are making is that the epa has no authority to impose this on for quantifying the good neighbor obligations and the second is that they improperly evoked this power. >> that is because you don't get that from the statute. you get that from what the epa did in the first place. is that right? >> we are not relying solely on this. but the epa has changed its interpretation of the statute is not adequately acknowledging her explaining how this is consistent. but as i mentioned earlier, it

requires the states to limit pollution that contributes to none of whom are. >> there are six state that contribute. and how much each state can cut back depends. it depends on what it costs. it depends on how much they contribute. it depends on what the other state are doing. and that includes what they have in mind for solving the problem. and they had a very good reason for not doing what they did before, namely it would be impossible here. the very tough and very expensive. so that is why i gather it went away that they did. i don't know anything in the law

that tells them the statute is meant to force them to proceed in a way that would either be usually more expensive and perhaps impossible. what is your reaction? >> bpa has done this before. the first quantify the estates good neighbor obligations to submit this before the federal implementation plans would take effect. the epa agrees that the states have no ability to guess accurately how they will quantify this. >> they have the transport rule. >> the only question is whether it should come out sooner or later. >> it's not impossible for them to decide what that means. that's their job and they've is learned that prerogative and they can choose any reasonable interpretation of that. >> he started to give us a

second statutory reason. i'm eager to see what i was. >> has come and that is section seven for 10 that we mentioned in the brief. the epa had previously proved this for 22 states and implemented this 1997 standard. once the epa approves this, it expires under the statute. to the epa had a problem for those 22 states. how would they be able to impose this when they had previously approved it. and they say in the transport rule that they are going to invoke the corrections power and it says that if the epa determines that this was an error, dashed. >> isn't that the issue that the three states are challenging? just that discrete issue about

whether epa can call this a corrective action or not? is not being determined in those proceedings? >> yes, three states have challenged it. >> so that is what is at issue there. >> he finished describing the issue? i didn't hear it. enact the epa invoked its power under this. but it says that a correction must be made in the same manner as the decision being corrected. their approvals of the earlier that, because of a they require that the corrections here did not go through this commentary there's no disagreement between the respondents on that point. the united states tries to get out of this problem by saying that they can use this rulemaking that is found in the

administrative procedure act. but it doesn't help the epa at all. but it comes from this brought too an exception of a statue in the statute providing that it's not the statute that imposes a requirement. >> this is a statute on which the epa gets its financial deference. but why couldn't we read that language essentially means subject to the same procedural ironman as the original? >> because that caveat does not appear. >> it's not a caveat, it's just a different understanding of what that language means. i mean, you say that it has to be in the exact same way that they acted. and i guess i'm saying that could mean subject to the sutro bierman. or is that not clear when that. >> at your suggestion is that

the epa could rely on this procedure act. >> whatever procedural acquirements and strained the epa wanted to prove this, those were the same procedural ironman that constrained the epa in this way. and we are just asking. both have to be subject to the same procedural requirements in the epa can act differently as long as they are acting within that same set of rules. >> we don't think that is a construction of this. they offer this to make corrections and it says specifically that the corrections must be made in the same manner as the decision being corrected and it went through a notice on, they have to go through notice and comment as well. if the decision went through formal adjudication, then it must also go through formal adjudication and they don't try to make that about what this

means. they're just trying to say that the good exception to notice this will make them carried over here. >> i think that they are trying to make that argument. they're saying in the initial version we could have done it or we could have done it if we had good cause. as well as when we were reversed that initial determination. >> that is what it means when they don't constrain us at all. >> it would follow. but if you did this for good cause, they can do it for good cause by rulemaking and then use it as well. >> it's is in the same manner. so it's looking back to the original decision and how it was made. it's the second recently

provided as to why this should be affirmed. so if they were to reach this issue, there's also the question of whether or not this can be severed. because it doesn't like time has expired. it would require this inseparability question. >> thank you, mr. mitchell. >> mr. t justice, the private party focused on the statutory limitations. to explain this in regards and why justice kagan was reading this the way we should suggest.

and we begin with the authorization of the prohibition that contribute significantly to nonattainment. the focus of a which we think is quite clearly on the effects on other states and not on the cost of reducing that. what the epa has done here is assert that it has the power to increase the state's reduction obligations beyond what a focus on the effects of its missions would require, simply because epa has decided it would be reasonably affordable for that state to bear a higher burden. what it means is that state are making only a slight contribution to air quality problems are nonetheless required to make very substantial reductions and in many cases far more than state senator making for greater contributions and there is no relationship at all under the methodology of the epa between the amount the state contributes

and that amount that it has to reduce. because the entire driver, mr. seward said that cost is one component. but it is the entire driver. >> focusing on your argument, which is very clear and very good. and the example that comes to my mind is that we have an overgrazing problem in the state. and it's caused because councilman state a. they are not friends. [laughter] >> it turns out that the epa was in charge of preventing the overgrazing and discovers that if they build this fence, that will cure the problem. even though they only contribute half or maybe less. well, if we bury it, you each

have because half the problem because that seems fair. it's going to end up that the people in state are going to starve to death. and so archways is between taking two people to the states, each of whom have the problem and getting an overall plan where you solve the problem at minimal cost or just divided 5050. it seems fair and mathematics, that leads to this. and that is what they have done here. and the reason that they are not doing this is because they know all of the states are partly responsible. and with this plan, we get the job done at a much lower cost. so where does it say that they can't do that? >> i will try to respond that.

certainly it is the case and we would acknowledge that there will always be a legitimate policy arguments in favor of the lease cost efficient solution. ..

we're giving them broad authority here. >> is there anything that cuts on your side you see as opposed to the other side of reading this language? >> one think i can cite and that is that the statutory history in this case is that the predecessor version to what we commonly have before us simply said that states were required

to prohibit the amounts which prevent attainment or maintenance. just prevent. looking at that language there's nothing in there that suggests costs can be taken into account. what congress said when it added the words "significantly contribute to nonattainment" and "interfere with maintenance" "is because it addressed cassation of bad air quality effects and it was shot fro duesing cost but relaxing the causation standard, saying shouldn't be something like but-for. it's enough it contributes significantly to nonatapement. >> mr. keisler, you have a statute that does not have any language about no costs allowed. that also does not have what the american trucking association statute had are which was week public health only sufficient margin of safety.

what you have is exactly what you said. you have a statute that focuses on causal contribution. right? so, this is a hard problem. right? because -- let me just sort of give you a a numerical example. let say that the standard is 100. and there's a state that has 120. and there are two states, x and y, that have each contributed 20. right? so, we only need 20 of those. we have 40. and the question is, how do you get from those 40 to those 20? the d.c. circuit would just say, we take ten from each. but if the question is only about contribution and that all the statute talks about there, has to be other ways we can make that determination of what

contribution each should be legally responsible for. right? and what the epa said here was, we're going to distinguish between states that have put a lot of technology and a lot of money into this already, and on the other hand states that have lots of cheap and dirty emission, and why isn't that perfectly rational thing to do under this very statute? >> well, first of all, i think in the example that your honor gave with the two states and should they be russed to ten. the reason in favor of doing that from a stat tower perspective, that gives a consistent application to the same causal language in the statute, which means that the same causal effect is significant itself comes from indiana but signaturent when it comes from tennessee. state -- we see that fitting

much moore securely within the statutory language than the kind of shifting that your honor mentioned. one can imagine since the policy rational behind your questions are legitimate, someone can imagine a statute that says ignore the fact there are state boundary. think about the most efficient way to force reductions, locate those reductions in the least cost areas and impose that on the state. surely if congress intended that it wouldn't have written a statute to order each state -- >> you battle mr. stewart's point, that congress surely didn't intent to shut down these plants if they didn't, or couldn't, feasibly reduce their contributions. >> yes, your honor -- >> so if they can't fees fees

apply do ill, wasn't the word contribute have to take into account some way the cost of reducing the amount? >> your honor, i'm here on behalf of industry and labor so we believe there have to be mechanisms to deal will those problems. we don't think they come out of defining the amount of significantly to containment. those considerations come into play elsewhere in the process. in the american trucking case that's been referred to, to the court said when states are implementing the requirements of the epa -- for example, by deciding to allocate among different sources how the reduction will be distributed, they can take costs into combat. and there are other -- when the definition of what contributes is translated into an emission

reduction allocation, and then the state says this is how much we have to reduce but costs have to be taken into account. that a very different matter from saying that epa in defining what amount significant he contributeses the same thing. the reason it's not just we're locating in a different box what epa wants to do. the box we're locating it in makes clear it functions as the kind of break your honor described, unfeasible or -- >> they found a way to do that with the cost tradeoff with the cap and trade system. because the industry can make that choice, with the state, presumably. >> the trading presentses unique issues. we support trading anywhere at it appropriate. but this is a statute of providing relief to down-wind

states and if indiana is emitting into delware that hurts air quality, it does no good for delware if indiana purchases allowances from tennessee which isn't contributing. >> you want me to right -- look what i would have to write to make it specific. two units floats over the air from the cow state and two units from the sheep state. if we treat them alike we're going to tell the cow state, your unit is the same as the sheep state's unit, both make the same significant contribution, and we have to say that, even if, for you to remit your unit, causes death and destruction, destroys your economy, and i have to write those words to accept your argument. >> wouldn't i? >> i'd like to resist the roll

your honor has -- >> the bringer of death and destruction and starvation. >> then you will either have to draw ademption -- distinction,. >> when you get down to the level of implementing these things you can't take into account whether death and destruction when the state is doing that as part of the process, but doesn't pear on how the amount of significant contribution is defined because when epa takes into account can it's woking the other way. at it saying that even though a causation standard only would require you to reduce this much, we, the epa, can shift to you an additional burden because we think another state hard -- >> they say that's not a theoretical possibility. why isn't this taken care of in the process that permits individual states to challenge

this? >> let me make a distinction. what the government says is a theoretical possibility is simply whether a state would be trench below the one percent threshold. what i'm sagos back toity scalia's first question, which is, even apart from the one% threshold, every time, a locating on the basis of cost and allocating on what each state contributes, you're shifting the burden around. >> you're saying significant must mean only measurable amounts. it can't mean -- pick your word -- culpability, feesability. one state finds it quite feasible to reduce emissions be a factor of ten. the other state, justice breyer's example, finds it can't do it at factor of 100. can't you say that the

contribution in one case is more significant than the other, based on feasibility? >> i don't think so. i don't think that is a proper definition of significant when at it modifying contribution. >> isn't contribution to nonattainment. it's the word "amounts" the statute prohibits activity from within a state from emitting any air pollutant in amounts which will contribute significantly. >> we agree. >> amounts are amounts. >> but the word "significantly" doesn't have a judgmental component. i think that's what the government is going to say. >> it's not a limitless -- >> i don't think significantly means that any factor that might be relevant in a broad policy sense can be imported in. when you have a statute here that talks about amounts that contribute to nonattainment or interfere with maintenance. >> so there's an ambiguity here.

you add the word amounts to significantly and i think that justice scalia's point might be -- he knows better than i -- an amount is an amount. >> that's my point exactly. >> and then the response is, well, not always, because you say, an amount you're talking about a specific amount coming out of the state and is the one -- the cow one -- as significant at the sheep one? and that's -- i think we're -- i think you have hit the nail as to what the issue is. >> i guess our position is significant may have a range of meanings but not a limitless range. one court said the fact that yellow is am osgood doesn't mean it can mean purple. here we don't think the range of meanings accommodate the government's definition. >> the nature of this problem is that it there's an allocation issue. it's not just everybody gets down to a certain threshold

level. there's a level and we have to allocate, and the question is, what are we going to allocate on the basis of? the word "amounts" done tell you what you're going to allocate on the basis of. we can just divide, you know, and do it all proportinally. we can take into account per capita, a state's population, or we can take into account, as the epa did here, cost. on the understanding that costs renext how much of an investment a state has already made in pollution technology. the neither the word amount or anything else saying in about the different methods of allocation. >> i disagree with that. i don't focus exclusively on the word amount or significantly. it's the entire phrase. i think ten out of ten people who w. in this courtroom and had

not read the clean air act, they're talking about what the effects emissions in one state have on the other. i don't think this is anymore ambiguous in referring to air quality standard than the standard in american trucking talking about health and safety as a standard. it supplies a content for the epa. >> what is your answer -- do you have an answer to mr. stewart's basketball hypothetical? i thought that was pretty good. what the coach what significantly contributed to the loss, he'll talk about the missed layup rather than the missed desperation throw. each would count for two points, assuming it was within their -- [laughter] >> very hard for me to translate the amount concept into performance on the basketball court, but mr. stewart's other example was a contribution to a charity, and i certainly would accept the notion that if bill

gates and i each contribute $100 to a charity, i've made the more significant contribution, but that's because we're using contribution in that context to moon something else. we're using it to mean donate or give. not talking about cause sawings. >> the basketball thing is to make it parallel to what is at issue here, the question should -- you should ask the coach, which of the -- you lost 101 to 100. which of the 101 points contributed most to your loss? [laughter] >> i assume the answer is that some done. >> the one that was the layup. he would not answer, the one that was the layup. he would say, what do you mean? all 101. >> if there were different teams playing in the league and you had an overall result, you could actually determine which team had contributed what to the

overall result, and when we're dealing with states, we're dealing with groups that the statute cob send to allizes aspirate teams which are entitled to be treated separately. i'd like to make one other point. my white lightes on. we have raised a separate argument which is independent of how the court decides epa made define the amount that contributes significantly, whether cost or air quality effects or anything else. and that is that however at it defined epa cannot regulate beyond the point necessary to achieve attainment and maintenance in downwind locations and here, prior to good neighbor rule making,ed examined the i-and avoid overkill. here it didn't do that. apart from the costs versus air quality, we had evidence that showed epa could achieve attainment at lower levels of regulations and epa's response

to that was, they weren't going to look at lower levels of regulation because at lower levels of regulation, some sources and some states might cease operating existing controls. that all they said. if sources in some states could cease operating controls and as the comments say you would still achieve maintenance in all the downwind locations they're linked to, the epa has no provision to require those sources to use their existing control. and the epa in this particular proceeding said nothing else, gave no other reason for refusing to act on the evidence that commonalitiers submitted that lower levels of regular laying at most up-wind states would achieve maintenance at down-wind locations and had no authority to regulate beyond the point necessary to achieve atapement and maintenance. >> if the court has no further

questions. >> thank you, counsel. mr. stewart you have four minutes remaining. >> thank you, mr. chief justice. we cited the restatement as it bears on the command law of nuisance, and as this court indicated in american electric power, if the clean air act had not been enhe canned the remedy of down-wind states would be federal common law nuisance state against polluters, and there are three lessons to draw from that fact. the first is that, as the breaths' argument indicates, judicial resolution of some a suit would have been a herculean task, and the process of doing that judicially choo reinforce the wisdom of congress' choice to replace that mechanism with the clean air act, and counsel is in agreement with the deference to the agency that. the second is that as the reply

brief citation to the law of nuisance indicates, the common law court would have been able to consider the costs necessary to achieve reduction in pollution upwind in deciding whether a particular remedy would be appropriate or how much of a reduction an upwind polluter should have to make, and there's no reason, absent extraordinarily clear statutory language to deny epa the same authority. the third thing is, as the analogy to the common lawsuit indicates, there are sovereign state interests on both sides of the case. this is not a matter of epa versus the states. it's a matter of epa trying to act as an honest broker between the upwind and downwind states. the clean air act as a whole is replete with references to economic activity and harnessing the profit motive. both the states and epa are specifically authorized to provide for the trading of allowances. the whole purpose of which is to

achieve emission reductions in the most cost effective manner possible, and i think it's worth noting in this regard that although we talked about the transport rule as regulating the emissions of states, what we're really regulating is emissions of power plants within the states and the good neighbor provision itself talks about preventing significant contribution from emission sources or emissions activity within the state. one of the things the epa said in proposed rulemaking was that in some circumstances the cumulative downwind impact of a particular upwind state might be great not because any particular power plan was poorly regulated or emitting at a high level but because there were so many power plants in the same state, and one consequence of forbidding the epa to consider costs is a particular power plant in an upwind state might be required to install more expensive pollution control measures and make greater reductions simply

because they happen to be located in a state with a lot of other power plants. the last thing i would say is, this is -- the statute, as i said before, has a prospective focus, implemented by state officials, and if you ask how would a state official assure herself or feel confident her own state plan was satisfying good neighbor obligations when she wasn't sure what other states mooing be doing. one way is that a state official said, if everybody else did what i'm doing, i can feel confident that the problem would be solved. and that really the approach that epa used. it examined certain cost thresholds and said, at particular cost thresh holds we feel confident if everyone, downwind and downwind alike, makes pollution control efforts at these levels, the problem will be solved or almost sold but a because there would be residual nonattain. it seems rational to say the

significant contribution is the amount over and above what would occur if everyone adhered to an approach which, if applied across the board, would solve the problem. >> thank you. thank you, counsel. the case is submitted.