when a distraught student wants to talk to someone, if it isn't the roommate, it may be the person who -- >> the ra. >> that's where other train could go be. the first person someone tells after a sexual assault theirs friend or this resident hall adviser and how that person responds will felonies whether that person tells anyone again. so if the person first person they tell believes them that person will be more likely to go through the process so we need to train our community. >> they're going to be more likely to go to that first responder if they understand that what happened to them is a crime. so we need to get baseline knowledge out there and that's has been talk about but just so that people -- all this conversation is assuming people get to a certain stage in the process, and i know that so many survivors say wasn't happened to me wasn't rape. >> it's interesting because it is so fascinating to me that in

this day and age there are so many young people that think rape can only occur between strangers they've don't think if it's rape, between people who know each other, that is the same thing, and you're right there is a baseline. talk about the statutory challenges we have in states. i know that new york has a -- i think every state is different -- about incapacitation and consent. let's talk about that. that's not something we can fix obviously in washington, but i think it's important we acknowledge that there is work to be done at the state level in terms of underlying statutes. >> certain lay gap between the college definitions and the college policies on what is sexual assault, and then our state statutes, what we can actually prosecutor, what you said before about sometimes people do go to law enforcement

and they're sent away. in new york state, obviously, a force able rape is a rape. if someone is intoxicated to the point of being physically helpless so they -- they're sleeping or unconscious, that is a rape. that's a sexual assault. but if a person is voluntarily intoxicated, but still functioning, walking, talking, and participates in a sexual act they're not presumed to be unable to consent. that's not -- it's not like driving while intoxicated. you're pot 8 and you're presumed you can't drive. it's note same. if you're intoxicated and you did that on your own, you're still considered legally able to consent. so that is sort of a difference between our state law and what a lot of the policies we have in the colleges we have in our sure

jurisdictions say where a person is not consenting if they are intoxicated to the point where they're not making a rational decision. a. >> that makes me thankful to be a prosecutor in colorado. goes back to your initial comments and questions what does consent mean. if you're talking about the definition of consent and the overplay with intoxication in colorado we have the physically helpless standard and an additional snatched of incapable of praising the nature of your conduct which is going to encompass the bulk of what we see which is the intoxicated -- >> voluntarily intoxicated to be point -- >> not all the way at the pass-out stage. so we're in that gray area and you need that kind after state protection in order to -- an alternative -- we often of course look at those as two different their ares of prosecution but i have greater options before me and that's a very important note. >> what about rape shield

statutes? do we need to legislate rape shield statutes for the university-based administrative process? >> we have them in the criminal justice system. it would be irrelevant and not appropriate to bring into the adjudication process any evidence that would have any anything to do with the victim's prior sexual conduct? >> i would hope that every university in the country would be committed to without any legislation. >> we have talked to student who -- >> sorry, we. >> we talked to victims who have been asked questions that would be highly objectionable in a criminal courtroom. >> that's really what occurred to me when nancy was talking about, we need equality. what occurred to me was, well, if you have equality, we have heard about -- at least i have situations where the accused could literally interrogate the

survivor. well, giving the survivor the right to interrogate the accused may not really be equality, especially when it comes to certain areas like past experience. so, senator mccaskill said maybe there needs to be some kind of limits. >> i think that is about -- when i say equality, i mean equality of rights, proceed ural rights. so you can set up your proceedings so that no one cross examines anyone else. right? and a lot of schools, even that use -- continue to use a hearing board kind of model, have adopted a system whereby no one -- neither of the two students are allowed to talk to each other. they have to give their questions through the board. so that is an improvement.

it's mainly just -- and i think that this -- getting back to becca's point about this making sure that students understand that what has happened to them is a crime. i also want them to know that what happened to them is a violation of their title 9 republic right -- title ix rights, a violation too equal educational opportunity, and that gets -- they don't understand that even more so than they don't understand the fact that it's a crime. >> alexandria, i interrupted you. >> was just going to say i knee a student who lost her disciplinary hearing because she had a previous sexual relationship with the offender and the board decided based on the previous relationship it was okay for him to cake few -- take

cues from her body language, that even though she was saying no, the girl wanted it, which is literally the school saying no meansey. >> you asked -- means yes. >> i don't pretend to be an expert on the administrative process but what i hear from the prosecution side where we still have problems, especially if -- so the high focus and if the school is underpinning a complain, there's enhanced reaction and almost feeling like i need to make sure that i'm being so appropriately consistent with title ix that you can get a overreaction mary response and we can get cross-wise with our local law enforcement. so, example, timely warning requirement. if a survivor is not ready to move forward yet, but they're struggling with, like, legal strugglely with, if they're serious or ongoing threat i don't know because they're not telling me everything. so in exercise of caution, because i don't want to get

cross wise i'm going to do a timely warning which can blow us from the beginning. it outs the survivor often times and blows the investigation from the beginning. so overlegislation is almost sometimes -- >> i don't know about this timely warning thing. >> that's a problem. >> we need the timely warning in sexual assault case? >> we have had some success in circumstance where you're dealing with more likely than not a consent issue, especially as it involves maybe intoxication or drug usage -- the incident isn't what you're telling people about. what you're telling about is how the incident came about and it's a very fine line, and i -- we have been able to work with language that -- we are very careful. we don't want to be in a position where we're using language that can come across as

blaming the victim for being in a circumstance, and yet the circumstance did add to the situation, the confusion. so, using language very carefully to say that there was in fact a report of a sexual assault, so we're being transparent and we say something happened on this campus, and then just sort of trailing out a little bit. sometimes the report doesn't come to us. it still might be an ongoing threat because you might be dealing with a background of a serial rapist so you need to get something out there but don't have enough information to move anything forward other than to say this is a pervasive problem on campus, not gone away, your time warning is actually a re-advisory the world has not changed enough we can move forward from here. >> i also think there needs to be some reality about how this crime is perpetrated. a timely warning? what exactly is that going to do? to me -- again, i'm not an expert at all on the college

process but i'm just thinking from a common sense standpoint from somebody who investigates these cases, this re-enforcing the myth that people are jumping out of bushes and sexually assaulting people. threat not what is happening. so if it's nonstranger seeks all assault predominantly, any warning that guess out, everybody is going to think that's not going to happen to my anyway because nobody -- it's always a surprise attack because you're never thinking the person is going to do this to you, would do it to you. one of the fundamental -- what make it hard too investigate these so the timely warning seems counterproductive and reinforcing what we're all trying hard to fight too get out to society, that is not the reality of thieves cases. >> i can live what with what chief and detective said, when you're facing a potential query on it, that the department of ed, you are probably going to

think about this differently, and if we're identifying challenges here, one should be very up front and foremost. >> we of capable of overlegislating. >> the other extreme is that we have been -- >> we have done this on several occasions i might add. >> well, we have been on the side of before timely warnings, and it's been spoken of today about hiding the reality of sexual assaults on campus, and i think one of -- they should never be so specific that they would out the victim. they should never be that specific. but it does say -- >> the campus is small enough you can do everything you can -- >> if you're dealing with a small campus and you say, it occurred, then you're asking for social media, you're asking for all of that. i think we have to really look at this. it's one thing if it is a jumping out of the bushes, you

know, darkened part of the campus where someone has been physically assaulted and sexually assaulted bay stranger, but it's a whole other thing if it's drunken fraternity party where a young lady is assaulted be three or four young men. >> and my guess is -- and that's goes back to nancy's point and the general point made here about the lack of reliable data, information, generally, on these issues, but my guess is that it's more likely than not the victim and the assailant know each other. >> at the right time, if there key about some clarity that comes out of this discussion, particularly for the department offed of indication, for the compliance audits, we sincerery appreciate that. as to the negotiated rule making that was a guiding principles to speak for clarity and the language we came out of that and make things simpler and this is one issue that i hear colleagues

speak of. help guide news these timely warning issues and the notification issues, because i also hear from advocates on my campus that they want a timely warning for all sexual assaults and if that correct or not, but i think -- >> we have been questions as well. we knew you had a sexual assault. why didn't you do the timely warning. not bit the doe but by my campus. it didn't meet the threshold. we have the person in hand and everything is all set, but responding back to educating the public on what exactly all these efforts are for is very helpful. >> something that i also want to bring up regarding regulations is to say that the crime statistics are very misleading, and i never hear that, so i'm going to say it. cleary defines very carefully what areas are crime toyings be

reported. -- crime is to be reported. i'd say well over 50% of sexual assaults that we are aware of on our campus are occurring off campus. a student is a student. they're in a house. or a loft apartment, or whatever, they are among people who know each other, they will not fall into the clery statistics because they occur offcampus. it's important -- if we want people to make educated decisions and be aware, it's important that those crime statistics reflect as much as we know about where sexual assaults occur. >> i would mimic what mike just said. that's an incredibly important and i can carry it one step further in our university, our fraternities are not part of the official student greek system and so any sex assault occurring

out through the fraternities are not being captured in clery as well as the off campus or different kind of group residents that aren't officially residences on campus or officially sanctioned by the university. >> there are more students living in those locations than there are on campus. >> yep. >> so it's even worse because the vast majority of the students are not being captured. >> huh-uh. >> in defense of timely warning for a second, one of the most powerful tools for change we have seen is students taking the law into their own hands and filing federal complaints. it is really lard to file a clery complaint because you don't -- your dependent on your school's information to know if your schoo

it's true a lot of students have

been drinking when they're assaulted. i don't think the alcohol is but-for there. often because it's with -- they're assaulted by people they knee they've been out in a social environment and there's alcohol involved. there's only one story i have referred it was really hole alcohol that played a defin -- definitive role which is the imagination where a woman wake up and has no idea what happened and this was not an ambiguous situation. she was passed out, picked up and put into a car and driven away. so i think we can talk about training, asby standers in social situations. if we symptom college drinking we won't stop college assault. >> i think we have to be careful that win we focus on alcohol, it's not about stabbing drinking, people shouldn't drink, don't drunk, you won't by raped because that won't stop

sexual assault. we need to talk about perpetrators are using alcohol as a way to perpetrate sexual assault and that usually gets confused. >> i want to say, too, we thought so much about this specific problem because we do find that in law enforcement i'm severe some truly awful community presentations about how to keep safe and women's safety. just makes me absolutely cringe. and it is a very slippery slope -- >> don't drink without a buddy. >> very well intentioned and extremely ill informed. so i'll read you a brief part in the mou for any agency that wants to participate. we believe so much about so it we put it in here. caution shall be used when providing any community education regarding risk reduction strategies to avoid shifting the focus from the offender's responsibility to not commit a sexual assault. for example, risk reduction strategy should be framed by how the perpetrator targets a victim

by either intoxicated oar isolated persons instead of how a victim's behavior allowed an assault to occur, i.e. the victim consumed alcohol. that's a very important clarification to be made if you're going down that road. we don't, as the professionals in this, trying to affect change, need too be perpetuating these myths. >> the myths get in the way of some people when they investigate the cases. they shouldn't have been drinking or this wouldn't have happened. and that get inside the way of people's investigation, be it police or administrative. >> if you're going to be a good criminal investigator you need to understand the vulnerables and how a perpetrator makes victim lose credibility and a lot of themes they're wrapped up with a drug facilitated oar alcohol facilitated assault. the difference is house they premeditated that and not the victim involvement.

>> how many beers is too many in order for consent. if there's some hard and fast one beer too many rule. this answer area where state laws are a giant quilt of mixed bags. it's really hard to say to people, well insuring this state we have an intoxication standard that doesn't tack about that. they talk about mental incapacity. people don't even see. thes and what we're talking about in that law. so, it's really hard to just try and draw black and white in this area, and again, i think we need to shift the die log so we're talking about how this is a factor in the crime, but not a cause of the crime. >> do we have model state statutes around incapacity and consent, that have been put out by the ndaa, the national district attorney's association or by doj or any of those. >> i can tell you i sat on the public policy committee for the oregon sexual assault task force and this has come up routinely, because anybody who actually

spends any time investigating these crimes will soon become frustrated by the amount of consent cases they can't take. so the d.a.'s office i they want to -- >> variety of different state statutes, we ought to try to pull together the national d.a.'s association and justice and try to get them to work on a model state statute on consent. i would thick in this environment it would have some political success. >> colorado is -- i mentioned the two different subsections earlier. but it's -- we expect almost 100% of the time it's a consent offense but within the statutes we're able to work through that and what consent means. so i don't know there's a model being proposed out there but cost is a workable series overstates we can private -- of statutes we can provide. >> we'll pull the. >> i'm surprised there isn't one. >> yes. >> i'm going astray for a second but earlier you asked the

question about where you might be able too help on the administrative side. identity i'd like too bring up one thing from the law enforcement side. it does have a overlap at the university. we still have an extreme shortage of same programs and the ability for survive users to come forward to get exams and while that's helpful to me on the forensic evidence collection, there's the well-being and safety and medical support that the survivor is lacking and getting, and i've been working hard in establishing one in my community...

or university-based medical and nobody is equipped to do that and help in that way. that is often what's prompting them to rip or so i still think we need a lot of work and help in funding availability and support for medical and the room of getting sane programs more established and accessible to our survivors because that is a huge hurdle for us. >> the impact of the collection of evidence and retention of that evidence is tremendous and our field and for the hospital. the hospital is mandated to hang onto that.

>> we have colorado legislation that has been practiced in saying you can't discourage -- and sending the test kit that our survivors have to drive 45 to 50 minutes to give the same exam. we need more well-established and available organizers. >> that denigrate job senator and supporting telehealth and new innovations they can make that available in the rural community so it's something that we need additional push forward. >> we will look at that as we look at the grandsons that will try to put in. it's sad to me because i was involved in establishing examinations in the kansas city hospital at st. luke's in 1979. and we are still talking about this, it is said to me that this has not become.

>> we have had programs before but they failed because of funding issues. it depends on the model. is your rape crisis center at base model so there's a difference of philosophy but it comes down to funding. >> right. >> speaking of funding it comes down to funding for all of us. we have all these faq's coming out of title ix. that's a lot of time and money and i'm lucky i work at a place where we have a dedicated victim assistance service but there are some people who are at their title ix coordinator and doing prevention and response and there's just not enough funding. i know the last roundtable there is money out there but there's just not enough to do crime statistics into the response. >> we have to look in one of the things who will try to do as we

draft this legislation is to address the problems we have heard about but also see if there are places we can simplify and make things less complicated. the worst thing is to have someone in your job that feels they are so overburdened by filling out reports that they don't have time to check to see whether the underlying policies are taking root and whether or not they are really making a difference in terms of establishing protocols and processes that are supporting the victims. this is an area where we can definitely over legislate. it sounds good and we want information the saddest thing a lot of information we demand there are few people that consume it. that is really a waste of time. >> is a large concern to have mass quantities of reports and not have that information. i think having the funding bear for the crime statistics is so important but i would be remiss to say that is where we are

throwing our money. we could be doing work in the current justice system and the judicial process but how wonderful would it be if there wasn't that problem. i talked to students all the time about culture change. it's not an overnight process but it is doable. in a cultural aspect of our community and we can talk about how it is changed over 30, 40 or 50 years but i truly believe we can work with college students to become the future jurors and defense attorneys said they are changing the culture overall. i think that it's a challenge that we are waiting until college to be talking about these issues. these things need to come up in elementary school middle school and high school because when students get to us they are 18 years old and have a set idea of how to treat people. you can't just undo that in a 45 minute orientation program. how can we change that culture from when they are five in consent when someone is tickling

them. how you can change that personally is where that money should go. >> it's one of the strong urges i have to share with you that we really are dealing with people who have been socialized for 18 years in gender roles and respect on civility and differences that are still present both boys will be boys and girls need to be polite. we can be reactive but i am with darcy on that let's get the education their center. let's get more pervasive than let's get to a place where the equality starts the conversation much earlier. >> is there anything else we haven't talked about today that any of you feel we have skipped over that we didn't -- it's interesting because i have a list of questions questions and this i look through them we have covered almost all of them in the natural course of talking about the things we have talked about in these two hours.

is there anything we have neglected to address that we need to bring up before we finish today? >> i guess i would like to say building on prevention and enforcement is good prevention if we are going to talk about what we were acquired in schools we need to make sure someone's holding them accountable too. that circles back to the conversation about money because the department of education needs to be big enough to be on the ground can just -- conducting investigations to identify the gaps between what they can see on university policies and how survivors are they being treated. >> in that regard and i would encourage a collaborative process with the department of ed and civil rights rather than adversarial process and we have been exposed to a voluntary compliance reviews that then were crafted in reports of something else. i think if you want compliance

it has to be a different flavor to it so to speak to encourage compliance through training and education. as it stands now there's a fear that if you call the office of civil rights or the department of ed for guidance you may be waving a red flag and the focus comes to you in terms of resolving a problem. >> i respectfully have to disagree. i'm on a campus where the department of education came in and a series of violations instead sorry we are not going to find him out of compliance. that is one of the reasons we are seeing -- why we are having these conversations. they know they're never going to be held accountable and that does feel in some ways to be engendered to me. giving perpetrators in school second chance after second

chance after second chance. >> i think there is value to both points of view and i think there is value to cooperating but then there is also value value to bring the hammer down read we have got to figure out if no school thinks the hammers going to come down that's also a problem and frankly we have talked a lot about the statue. the only real penalty that they have is to remove all federal funding which we all know is unrealistic and never going to happen so we need to have some kind of middle ground of a problem. they are adamant about wanting to stay with the voluntary compliance program. i have got no problem with voluntary compliance programs that may be a first offense but if you are back on that campus and they have not kept their end of the bargain and not done what they agree to do than there needs to be something other than an idle threat and i don't think they have that right now.

>> it has to be something that doesn't punish the students. after all potentially the victims so to have a penalty that is a nuclear option without any clear kinds of graduating responded to have a penalty for the people whom you are trying to protect and give those rights of equality doesn't seem very smart either. >> it's hard. >> to kind of follow on both the enforcement and the technical assistance and the training that we were talking about earlier that one good way to sort of, one good place to put our money as the federal government is to require training from not only law enforcement or disorder

frontline first responders but also those, i informed intervening techniques should also every title ix work on campus should be required and that training should be provided by the federal government. it doesn't have to be provided by staff of the office for civil rights. it can be provided by saint technical assistance provider who is identified by ov w. the office of violence against against women and the department of justice which is what they do at the campus grantees. there are a number of different ways to do it but the training should be as uniform as possible and therefore it should be controlled at a fairly detailed level by the federal government and should be required.

and you also deal with the funding issues because if the federal government is providing that training in schools don't have to come up with the money to provide it themselves. and from my perspective that is how you get -- that is part of the way you get these various messages and information about multiple goals and the fact that there are title ix rights as well as the right to be free from crime and things of that sort. >> i agree with nancy and something in terms of the administrative process that we have discussed i really recommend looking to the association of student conduct administrators for best practices. i recognize clearly their outlier institutions. they are institutions not doing the right thing.

>> there a lot of them doing the right thing. >> there are a lot and i would look to the association that provides leadership. >> okay. >> one final comment. i just want to touch briefly on the prevention side of it from a different perspective. i do believe that many of the issues we are talking about today dealing with do have an enforcement answer to a point. i'd knowledge law enforcement isn't going to be the right answer for everybody however when you break from the traditional model of law enforcement in the start providing an environment that encourages reporting and therefore identifying serial perpetrators and providing information to our das to prosecute those offenders that is it form of prevention and will have an impact on our college campuses because we are not only sending a message to victims that they should be heard and will be taken seriously we are sending a message to offenders that they can no longer keep people silent

in the same way they have before. i do believe no matter how you feel about long enforcement if we focus on fixing some of the issues with our sponsor right now to some of these other issues it will be effective. >> i think i love you. [laughter] i think all the prosecutors, yes send either way it is very interesting. you have kind of reworked the traditional law enforcement model and one of the things i think we need to do is we need to figure out a way to make that model title ix compliant and if we can do that i think we might be onto something that could have a real positive impact on empowering victims and holding perpetrators accountable which is what we want to do. first empower victims and take care of victims but second hold them accountable. i know right now it's not title ix compliant. i have already talked to the

white house about this challenge and i think we are going to try to get our heads together and figure out if we can somehow legislated away to make that particular model title ix compliant. it's a little tricky because of the reporting what i think it might be worth it. >> i apologize if i said this already but we have over 40 campus one person agencies warned to have reached out and said i want to do the right thing and i want to do that them do that in with the taliban might now you are amazing and not so great and i'm sorry. it's a positive thing that they are reaching out. it's an unfortunate answer that we can't help them all. >> lets find a way that we can make a title ix compliant. i think what you are doing embraces what we want to see happen within title ix. so we have to figure out a way to get that done. i think we are in a better place with title ix after the faq's

came out and i just want to give ocr credit for having done you know from my perspective acknowledging that there is a wide diversity among how well schools are handling this issue that it might not be enough. what we set up with this free path approach where you had privilege reporters and you had confidential reporters in that you have responsible employees were their confidentiality is ultimately the decision of the title ix coordinator but they confidential employees that middle category is now based on the judgment of the school. and so the school could not identify anybody including people who are very obviously

shouldn't be confidential employees. they could refuse. they could refuse under this system to identify them as confidential employees and so that might be a place. >> if you hear for school that is done that will let me make sure you -- make sure you let me know so i can happen have them here as a witness at a hearing. if they try to take health professionals or. >> i'm not talking about those folks because those folks have privilege based on state law great time talking about the folks like women's center directors like i used to be who do not have privilege based on counseling license for instance. but are likely to be considered by students as being someone who i could go to confidentially and my report will not be automatically an alliance to the

title ix coordinators. part of the idea of you having options is that you have options. there might be a way under title ix to retain the enforcement idea but still give options. but that may not -- it may not be advisable to leave that entirely up to the school to determine and to actually identify some folks on campus in certain roles they should be confidential regardless of whether they have privilege. >> in this model the only person that could decide if someone was confidential or not would be the victim. it wouldn't be the schools. >> the hangup we have seen for this to be effective and we didn't talk about the other side of the program of the program which is the investigation, you would have to make your campus law enforcement not title ix reporters. in order for this to be

effective so they could identify a serial perpetrator. that is a departure. >> we have got to work on it. i want to thank all of you. it's been terrific. >> thank you all. >> we have learned a lot and i think we are better informed informed than mummy began and you are all doing tremendous work and i appreciate you taking the time and traveling to be here today in helping us with this. please continue to communicate with us as we -- especially once the legislation is drafted and have a chance to look at. we will tell you with certainty that a piece of legislation being drafted does not mean it's going to look anything like that when it's finished so there will be plenty of opportunities to shape it and change it and to tweet it and amended and we will look to you for guidance on the best ways we can get the best package possible to get at this problem that i know you will all work at every single day so

thank you very much. >> thank you. [inaudible conversations] [inaudible conversations]

>> religion is a powerful identity forming mechanism. it is part of human societies

figure out who is us and who is them, right click who is my group and who is the abreu. religion answers that question pretty easily. if you pray like me, if you eat like me, if you go to the same church as i do then you are us and if you don't then you are them. you can see very easily how that kind of us them in group of group mindset could very easily lead to extremism to marginalization. after all if they remind people religion may be the most powerful form of identity formation that just as powerful as violence. how do you know who is us into his them? if you are fighting alongside me you are us. if you are fighting against me or them. so far from religion and violence being these two things that are at odds and should have nothing to do with each each other they have since everyone knows throughout history and much more aligned than we would like them to be.

>> the supreme court ruled 55-4 monday the environmental protection agency exceeded its authority by changing the emissions for greenhouse gases under the clean air act. now the february or a argument in utility air regulatory group versus epa. it's an hour, 35 minutes.

>> with other argument in case 12 .1146 utility air predatory group versus the empowerment of protection agency and the consolidate cases. mr. kaisner. >> mr. chief justice and may it please the court that the situation in this case is to our knowledge of persons in two respects. first epa agrees that its interpretation of the title v statute is adopted implying other provisions of the same statutes would according to their terms in epa's words were sold in a program that would have been unrecognizable to the congress that enacted it so contrary to congress attend -- and tent and second epa to that conclusion not as a reason to re-examine its interpretation but as a basis for rewriting other provisions of the statutes that are clear and unambiguous

because the agency wrongly believes that fixes the problem. this is not a single one time statutory writing as problematic as i longer be because the agency said it intends to continually reaches the threshold into the indefinite future based on its ongoing assessment of the costs and benefits of regulation. >> 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, the various briefs and among the lower court opinions in this case. here are some choices are right and i want really to ask you to pick what you are arguing for it. your original decision was that any air pollute and meant any pollutant for which the area is entertainment. judge kavanaugh's position is that it means any pollutant. there is another that says it

doesn't mean and amex pollutant. it means in a local pollutant. there is still another position that says it's any regulated pollutants other than greenhouse gases. so those are four different interpretations that all of the folks on your site and i realized there a lot of that have% in and i guess i'm asking which one you are arguing for. >> our principle argument in the one i would like to focus on first is that while other programs of the clean air act gives epa authority to regulate greenhouse gases psd does not and that is because and this is where i would choose one of the options your honor. that is because the psd program is exclusively focused on emissions that have area specific air quality impacts and

not undifferentiated phenomena. >> when you say area specific i take it that these ozone pollutants are not area specific. with your interpretation exclude those as well? >> of the epa could not make a regulatory finding that they have a specific air quality impacts yes. >> and i ask you a follow-up to justice kagan and a fifth interpretation by your side. that to me is the quintessential ambiguity and 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? >> first of all your honor the difference that the agency is afforded as i was going to be afforded reasonable interpretations and would start with the premise premise premise

that an interpretation that were quite agency to rewrite other provisions of the act. >> while it hasn't rewritten them. all it has said as i understand it and i don't understand other than your view that too many people are regulating is that we can't implement it immediately because it would overburden us administratively. over time the streamlining and other adjustments that can do this. it just has said we can do it right away. >> that reflects a deeper problem and i would like to address that and explained why her position we think is the correct and only correct interpretation of the broader question. >> before you do that can you clarify whether or not is limited to criteria pollutants even so that must be installed

for greenhouse gases. he seemed in your main brief to agree with then you have a footnote 86% of the emissions on the governments and 83 on yours. your reply brief seems to turn 180 degrees from that. >> i recognize having six isn't the most helpful way of a court to present our position to let me express on behalf of all the private. our principle argument in the one i would like to focus on the most is greenhouse gases are not included in the psd program at all. they can't trigger to put ability and they wouldn't be subject to the best available determination. >> that is because they are not local. >> they don't have area specific air quality effects. >> would he make of endangerment finding that it has to have

severe effects at the local level and the finding is that they exacerbate ground-level. >> certainly every effect that every environmental phenomena has let some point be filled in some local area. our point is that is not the kind of measurable area specific recently defined statute. >> the agency doesn't assert that its measurable right? >> that's right meb would help if i identified 33 features. >> i'm sorry before we do that we have an outstanding question. >> thank you very much mr. chief justice. the problem is not simply that the agency rewrote the threshold and said we would try it but to get down to the level of the statutory thresholds. the reason congress wrote the

thresholds was because i wanted to exempt the small entities from the cost of the burdens of the permitting process so went epa says eventually to get down to the apartment buildings and large high schools that would be covered at those thresholds were applied to carbon dioxide is a contravening intent another way. >> i didn't mean to be saying that anyway. they will try to do it that make whatever extensions are necessary. >> the problem is those exemptions violate the statute as well. to have general permits by category and a statute specifically says these determinations are a case-by-case followed by an individualized hearing. >> it clearly is not a matter of the epa simply saying we can do it right away but we are going to do it eventually. >> that's right and they would be violating the statute in the worst ways. they would be trading a demand

by congress not to write a small entities and to command to regulate too small entities. >> mr. keisler do you mean to say that the only difference between greenhouse gases in the air pollutants that congress clearly had in mind in the clean air act is that greenhouse gases don't have a mobilized effect? isn't there a big difference in the quantity of greenhouse gases emitted by sources are much greater than the quantity of these other pollutants and that is why there is this discrepancy between the statutory thresholds and the threshold that epa has? >> that's right your honor and their two problems each which creates its own and need to violate the statute he this was a statute for case-by-case permitting of a small number of large sources and when we rewrite the threshold we promise

to regulate to the level you're violating that aspect of a statute that the other aspect of the statute which is easily -- equally violated the requirement that this particular program focused on the area specific air quality impacts in their three central features in the psd statute which we think show that. first is section 471 which is i think is on page 13a of the appendix to the government's brief and that is a provision that specifies what the psd applies to an significant deterioration applies to. the program consists of issues and limitations and others as necessary to prevent significance of air quality in each nation and their quality is clean air act language for that set of problems that has

regionally defined effects. >> there are many statutes i believe particularly in the greater detroit area were congress passes a statute and tells the agency to do it abc and d and then it turns out there are so many regulated things that it doesn't make sense to apply it abc and d to all of them so often i would think an exception where it makes no sense. for example if there were statute that says you have to throw out all bubble gum that has been around for more than a month what about bubblegum used in a display case that nobody intends to eat and so what we do all the time as we say it doesn't need to apply to that. why can't we take the same approach for epa take the same approach here? 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 into it and on britain for places where it made no sense. >> i don't know if there's a president in which it says you can take an express command that doesn't delegate to the agency that determination threshold. >> i'm a little confused because there have to be pollutants where it doesn't aim at just 250 but where it emits 1 million the best available control technology won't get it down to below 250. the psd program is in effect when they i get down below 250 on any of the six criteria. so it can't be your view that the statute was written only to get to measurable pollutants

that are at 250 were can be brought below 250. >> that's right your honor. to bring facilities down below the 250 level. it's our position that 250 is the trigger that a facility -. >> ghd is something that is above that and it's never going to be brought down below it. >> that's right but it's above it for millions of entities that congress intended to exempt from the permitting process. >> mr. keisler if i could follow up on justice breyer's comment because the conundrum is to say the epa's violating the specific statutory term but the conundrum that this case raises is that everyone is violating a statutory term. the epa's saying we can't do the

100/250 and 50 with respect to greenhouse gases but you are also violating the statutory term. it says any pollutants or it says in the other provision each pollutant subject to regulation. nobody would think that the most natural mustian reasonable readings of those freezes or any pollutant if they have localized effects but not otherwise. what has happened here is you have this new kind of emission that basically makes these two terms of the statute a reconcilable and the agency has essentially picked one. said look we are not going to just exempt a broad class of pollutants. instead we are going to fudge the numbers and why isn't that the more reasonable at the two things to do? >> because we don't agree your honor that those two horns of

the dilemma are equally situated. certainly 150 to 250 tons per year is an ambiguous term. that is an issue that is subject to interpretation. >> the thing i don't understand its true one is a member 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 freezes as meaning a single thing which i think if you put aside the absurd a problem in this case everybody would agree is the most reasonable interpretation of those phrases. you are saying the epa should junk that most reasonable interpretation of those freezes because there is a new kind of emitted chemical or whatever that makes the numbers not work. >> it goes much beyond the

numbers just as kagan. i think if anybody were looking at the psd statute in isolation without the benefit of massachusetts versus epa summing summing the work put in with an undefined term and the question was what ... this provision river today would conclude it refers to to pollutants that have those area specific to air quality impacts. the deterioration of air quality in each reason -- region and to areas which we think make it unambiguously clear. that mandates the one analysis that has to be conducted in every permitting process in one analysis that congress is required a available for public hearing and that is an analysis of the air quality in local conditions at the site of the facility in each area that is going to be affected by the conditions.

>> councilman putting massachusetts versus epa to one side, i was in the dissent in that case but we still can't do that. [laughter] >> that's right your honor. >> my question, i assume and it's the case that we are bound by the results and the reasoning of massachusetts and epa and american electric versus connecticut. under your view, what regulatory force, what regulatory significance to those cases have under a you are pretending that they approach by the chamber of commerce? i think that may be consistent what with the chief justice open with. >> massachusetts versus epa did not hold that the interpretation of pollutants in that opinion

had to be applied every time toward pollutant appears in the clean air act. the same day massachusetts came out the court decided environmental defense versus duke even in a defined term in the statutory provisions construed a particular way that doesn't mean the same term used elsewhere in the statute can't be construed differently for context requires in the court reversed the fourth circuit for holding they had to be the same. that is why massachusetts after holding the definition of food and unambiguously in its literal sense included greenhouse gases the court didn't stop there and went on to ask whether applying that definition to the title ii provisions on motor vehicles issued in that case produced and what the court called extreme measures are counterintuitive results and only after finding no extreme counterintuitive results of the court direct the epa to apply that definition to those title ii provisions. i think what that reflected was

the court understood the literal definition of pelot and was sufficiently broad that it shouldn't be mechanically applied anywhere in the act where they were pollutant appears without additional analysis of the context of those preventions -- provisions. >> what else is a cover other than multiple vehicles? >> their multiple places in which it appears in which they have interpreted the words any air pollutant to mean only a subset of the pollutants that the definition literally. >> that's generally because the section that it is then gives a different definition directly. >> with respect to your honor that is not correct. for example in the psd title v provisions the epa has interpreted that to mean any regulated air pollutant. >> you are right. >> the same thing with the provision on his ability.

>> your answer is that they can be treated differently under different parts of the act. does not contradict your earlier view that we can't change the statute? >> it was an active interpretation in massachusetts versus epa and the question as reading that decision as a whole what import that the court get that interpretation? who would not it made it to go on and say let's look at specifically the title ii provisions of the issue and ask whether they'll produce extreme are counterintuitive measures. they weren't the case of that was an additional inquiry necessary. >> what kind of programs as i asked earlier other than motor vehicles? >> most critically your honor it includes the performance standard programs of section 111 that this court discussed in this is an important point. this case is not about whether epa can regulate greenhouse gas

from stationary sources. this court held that it could under this program in section 11. this is about whether permitting authorities the 90 plus state permitting under this psd program. i mention the ms vs program because the features of that program highlight what's wrong here because the ms vs program does not contain the elements of the psd program that required the psd program to be rewritten to make greenhouse gases fit. an sps does not have the 100 100/250-ton thresholds. it lets rule-making decide what categories and sources are most than shooting to the problem and require regulation. this required the impact analysis of subsection e of 7475 which epa has told -- told permitting authorities they can't be done for greenhouse gases.

in sps permits the epa to look at reducing the footprint without regard to area specific impacts and permits the epa to do this for a national uniform emission standard to determine how to make rather than asking 90 permitting authorities which is what psd is about to a understand each plant and there's jurisdiction should do. >> mr. keisler i'm not what this statutory provision as you are talking about. is it 7411? you are saying they could use 7411a or b. there must be some reason they didn't do that. >> they are doing it your honor. >> and i don't know what the case is about. you agree that they could do it under the other one. >> it's not exactly the same thing. it's the difference between a

notice of common rule-making establishing national emission standards and then the plants can deal with that incentive system the best way they can versus this command and control psd program where authorities are each having to decide on their own what controls they think each plant in their area should engage in on order to deal with global warming. it makes perfect sense addressing the areas pacific impacts of plants built in their states. >> eight says substandard with modifications as he deems appropriate. >> of this is the right program why couldn't they copy it word for word? into the rules and put a different section into the rebuttal? i know you have a preferred way to do it but if they disagreed

with you and they think this is the perfect program why can't they do it? >> because the statutory language of the psd program does not encompass these kinds of the pollutants that have globally dispersed results and not area specific impacts. as for the reasons i've indicated 7411 -- 7471 says the prevention of deterioration is focused on deterioration of air quality in the region to study required by 7485e and the fact that this is a sign to 90 state and local permitting authorities. >> to your second i've been keeping a list of points you have not been permitted to get to. one you were going to discuss not just the massachusetts case but the follow on case and you never did that. >> the only point to make about that if that was the case which held that the epa has authority

under section 111 a day hundred 11 of the nsb has provision to address greenhouse gases without having to rewrite thresholds but it has to do it by national emission standards for rule-making for connecticut versus -- could not approve the psd provisions of the regulations rewriting the statutory thresholds. >> the other thing you were going to give two points and you only got to 7411e. there was another point. >> there were three features i mentioned which we think make the context here. >> the second was that study the only required study is local conditions and the third is just that this is a signed 290 local and state permitting authorities which it is not plausible to think that these very specific

impacts but a global problem like global warming that congress was doing thing we think permitting authority should make those decisions then perhaps epa. >> just to be clear newer reading would say that the agency was not permitted with notice and opportunity to be heard to make a criteria and make this a criteria of na aqs. >> at the agency tried to establish a naaqs we think it would be contrary to the statute because the national ambient air quality standards are about regional concentrations. this area and are out of compliance. if the gas goes to the atmosphere in this mix they are the whole country is going to be in attainment are the whole country is going to be out of attainment. >> what do you take an extra five minutes and you can begin

by answering the question, the government disaggregate it the discussion in the first in their brief is that greenhouse gases can be regulated with respect to sources that are already covered by the psd program. that position does not implicate your concern about the broad reach of epa regulation, does it? >> i think it does run it because while that may deal with the issue of rewriting the threshold effect that the psd provisions for the reasons i've indicated is limited to air quality impacts would he violated by applying best told control technology to have globally dispersed substance like greenhouse gases. >> understand that they would only be applying that with respect to psd permit at. >> they would be applying it to

substance greenhouse gases per which the psd program was not designed to be addressed. i would say your honor while they try to separate those issues out there is one issue about who is to get a permanent whether the requirements of the best control technology applied. the regulars and that they have adopted to implement what they call their terror and rule applies equally to both. what they have done is say the word subject to regulation which are words in the back provision shall only apply to greenhouse gases even when they are regulated if you are imaging them a 100,000 tons a year. they both rewrote the provision that says who has to get a permit and they rewrote the provision that says what best available technology applies even other brief treated as separate. i'm not certain how much time i have mr. chief justice. >> you have prenab minutes left.

>> in my rebuttal? >> you have five minutes in your rebuttal. >> if i could turn to my second argument that is an argument that need not be addressed if the court is persuaded by what i just had but if not i have a second neuroargument that addresses the requirements for triggering the psd statute in our position on that is very much like judge kavanaugh's position below which is that the statute is triggered only by emissions for which the areas in attainment. >> that is not judge kavanaugh's position. our profession is similar. >> it comes from a different portion of the statutory language's. >> parts c of the psd provision applies not to the areas of old but for some pollutants and not for others in a particular area.

>> can i ask why judge kavanaugh's argument has been left by the wayside? >> is very similar your honor to the argument we are making that week get added in a different way. >> it comes from different statutory language. his arguments about the structure of the overlap between the arguments the legal rationales are entirely different. i guess i'm just curious. >> this is the argument we have made below in the argument we continue to make. >> i don't think that answers the question which is i know that is the argument. are you saying you can't defend this argument or are you sayin saying. >> is just that it's been hard not to make to alternative arguments and to add a third to

it would be more than i can handle. >> can you clarify. [inaudible] epa has added many others across the years. for 30 years has been adding things for which there are no nets. what about all of those? >> your honor its trooper since 1980 although a proposed interpretation as its interpretation of the statute since 1990 epa has said and he has said annie putin whether it's a naaqs putin's or any pollutants would be sufficient to trigger pst requirements that dataset no practical effect because all those other pollutants that they are in the threshold quantities invariably we have been able to find two or three exceptions over 30 years trading terribly the facility admitting them -- emitting them as emitting 250 years -- tons a year.

with the court's permission i will reserve the remainder of my time. >> thank you council. emacs general mitchell. >> mr. chief justice may it please the court. there at least two issues in this case in which epa and the petitioners agree. the first is the term air pollutants cannot be given a uniform construction throughout the clean air act. even after the courts ruling in massachusetts to air pollutant includes all all things airborne for purposes of title ii. the second of agreement is greenhouse gases cannot be treated the same as other air pollutants for purposes of the p. s. the entitlement programs because dam and programs because

dan and aqs tessitura requirements of the programs are incompatible with sensible regulation of greenhouse gases. epa thinks it can fix this problem by imposing -- only to greenhouse gases. the proper response is for epa to conclude that congress never delegated regulatory authority over greenhouse gases in the psd title v programs. congress does not establish ground rules for square pegs and brunner williams on hold in these situations an agency cannot make around whole square by rewriting unambiguous statutory language. >> a take it be an ambiguous language you are talking to our references to 20250 and seems to me that is an odd kind of turned to drive such an important statutory interpretation question because what those numbers were all about is that they were supposed to separate

major animators from minor in matters. they were supposed to be about the size of the facility. they were not supposed to hav have -- they were not supposed to make distinctions as to the type of pollutant. you are essentially using those numbers to make distinctions as to the type of pollutant rather than it seems to be a more sensible approach would be to say look at 250 and 100 numbers don't work for this new kind of pollutant. we are going to up the numbers and that will leave the rest of the statute in all the purposes of congress and cap. >> justice kagan recently think specifically for bid epa to do what your honor is describing. 7661 aaa says cannot exempt any major source from the title v requirements. because that provision is in the statute epa cannot be claiming to seize discretion when

congress has specifically withheld that discussion here. the question to ask is whether the term air pollutant is flexible enough to accommodate different meanings in different statutory contacts and even epa agrees with us that the air pollutant can mean different things in different parts of the act. even after massachusetts. massachusetts held air pollutant unambiguously includes all things airborne of whatever stripe for purposes of title ii but epa has refused to carry over the definition throughout the clean air act by the term air pollutant appears. one of them is section 7411a for which is part of the sbs program. the provision that term air pollutant appears as part of the definition of modification. epa does not interpret that to mean all things airborne. it doesn't hurt that to mean all regulated air pollutants. it interprets that to mean air

pollutants for which a standard of performance has been established. the psd title v permitting thresholds in the air pollutant on to make all things airborne got to meet any regulated air pollutant and finally section 7491 epa interprets the phrase in and the pollutant to mean any disability inherent pollutant so massachusetts is forced to play to every provision of the clean air act for the word air pollutant appears to do all these interpretations would have to be discarded. >> general if you think about the question of what any pollutant is anybody's by this whole absurd the question that the numbers get you to and you just say what does any air pollutant mean does it mean what epa has said it meant for 30 years which is any pollutant that is regulated under this act or does it mean something more along the lines of what you are saying which is anything other than greenhouse gases are anything other than pollutants

that have particular localized effects? you would honestly choose epa's version of the thing. the only reason you are not choosing that is because of these numbers that are in the statute which were designed on only, only to distinguish between major and minor in matters. if you can distinguish between major and minor and mentors while keeping the long-standing interpretation of any pollutant why wouldn't you do that? >> because i don't think the phrase any air pollutant on the biggest way means any regulated pollutant. epa has adopted other definitions depending on the surrounding. >> let me ask you a question. assuming we agree with you that neither massachusetts or alabama, there's no statutory command to come to the epa's conclusion, what do we do?