house gas emissions. sonia sotomayor did not participate. this is an hour and 15 minutes. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> the state ask that the court sess liability and assign a new common law reality in climate change and by applying a general standard of reasonableness to determine for each defendant, what if any, its share in green house gas emissions ought to be. that would require the courts

not to enforce policy choices placed into law by the other branches but to make those choices themselves. and the federal common law shouldn't be expanded and that the case have different points and have the same basic powers of principles that accomplish that the case ought to be dismissed. >> they do all flow from the same basic argument. and i'm concerned why you think we should focus on prudential standing basically which cuts off our jurisdiction at our own whim as opposed to dealing with this on the merits. in other words, you say this is too generalized for the court to address. >> mr. chief justice our argument hasn't been prudential

standing government. our principle argument on standing has been article three standing. and we actually believe that the court could resolve this case and address the issues in any order with which possible exception which is that we read the article three standing before reaching whether it's a valid cause of action. >> what good does it do you when you say there is no article three stand. the suit will be brought into state common law and not ours. >> many states have similar doctrine of political question. >> we only need one. >> in any event we believe we have a very strong motion to dismiss on a variety of grounds -- >> we're not sure about that, are we? we may be just spinning our wheels here. indeed, tapping the case to

state judges instead of federal judges. i would rather have federal judges to do it. >> i think we would be able to defeat a state common law defense for lack of proximate cause but in any case whichever ground the court resolve this is case, we think it's clear that the cause of action can proceed. >> if you had a state court suit with a state plaintiff, wouldn't the state be able to do federal common law as a ground for recovery? >> and then we'd get to the meries and see if there's a common law of action? >> it's possible although it's more likely to proceed under state common law. we don't think the elements of the cause of action knew sans -- knew sans can be met here. >> we all know we have to peak

at the merits to see if it has any standing. but in this case it does seem to me that you're lacking any kind of precedent. >> but the court has said in "ward vs. seldom" that the court will benefit in a tangible from the court's action. >> if you have the president of the e.p.a. and if any one plaintiff is standing, that's enough. so if we leave it standing alone it seems to me that states would have standing on the same basis that massachusetts has standing. >> justice ginsburg we believe that massachusetts was very qualified to focus on the particularly context of that opinion. the court says that it was addressing standings challenge the denial of a petition for rule-making when the agency would be producing incremently

and a statute specifically gave them that kind of incremental protection. the statutory right was of critical importance. >> the court did say that. but it's cut off from the court's actual analysis. when the court goes through redressbility, the court never refers to the statutory cause of action. >> but it does refer to the regulatory cause of action. the court says that if the e.p.a. about tracebility were there and were adopted it would doom most challenges because agencies proceed incremently. we believe there is no basis for the plaintiffs to seek that kind of incremental relief when they've acknowledged that it will have no material effect on their injuries. and they acknowledged it when they said that the relief would

seek here would only constitute these plaintiff's share in order to have effect. that's an acknowledge that it would not provide them re. and that means this is a classic case in which the injuries are not the product of a defendant's conduct but of a collective independent action of numerous third parties. >> but the court clearly understood that and said that it was enough. and i would think under traditional standing principles, the standing there was actually harder to find because one had to go through the e.p.a. first. one had to say the e.p.a. should regulate and then the e.p.a. would regulate and then the question was would that reduce emissions levels? here the e.p.a. has added the ping chur, it's much more direct.

>> here they are suing five separate defendants each of whom have to be evaluated individually and there is not one of them that it would have any tangible effect on the injuries that the plaintiff's claim here. but we think massachusetts is relative, it's very specific in massachusetts about what its role was and what it was what the court says. we lack the exert tease to second guess the policy choices of the e.p.a. that its role was to compel the agency to the statute as the court interpreted it. in this case the state is asking to make those policy choices in the first instance and they say that the cours can do this because the courts can do this in pryor knew sans cases. but this case is nothing like an instance in which one state is complaining that another state has dumped sewage into a

body of water. >> how many states does it take? three states have made that allegation. i don't know exactly how you draw the line between a case like tennessee-copper and this case. >> it's not a question of the quantity of states. this task is different because of the global nature of the phenomenon. >> i'm more receptive to this kind of ak argument if i knew where we were going with our standing. i don't want to make it difficult on you. but i take it that these arguments also go to whether there is a cause of action on the mayor. >> exactly, your honor. and whether we should expand the common law. it makes it different because ever sector of the economy worldwide produces gas nature and there's no geographic case between the source of the

emission and the victim that claims the harm. and that changes what the court has to do it means any court or policymaker thinking about how to alleviate the kinds of injuries have to first think what is appropriate overall level of green house gas emissions in the atmosphere and make a comparative judgment about the reductions necessary to achieve that level should be allocated among all the different sectors based on the social good that sector produces and what it would mean -- >> i thought your first argument when addressed this issue was -- it's a decision-maker and a decision-maker is e.p.a. so you wouldn't get to even how to argue this task would be. it's within the court's -- i thought your position was that the function -- this regulatory function has been assigned to the e.p.a. and not to the

court. >> we are making both arguments, justice ginsburg. we don't think there would be a common law action. but the argument is stronger and easier because of the existence of the clean air act and in particular because this court in mace, e.p.a. interpreted the clean air act so that the term "pollutant" includes green house gases. that means that conk has assigned to tepa to make the determination the plaintiff's asks the court here. do green house gases injure the public and if so -- >> the e.p.a. is given authority to regulate other pollutants including those that don't go up into the atmosphere but that does not prevent california, for example, from enacting stricter standards for automobiles in its state. and why should we say that the e.p.a. preemps the federal

common law -- preempts the federal common law? >> i would refer to it as replacement. it refers common law across a variety of areas but it distinguishes between displacement of federal common law. presumption is against preemption of state law. but because of federal concepts of separation of powers the presumption is in favorite of law-making by congress and not law making by courts. and that means the standards are very different. it means if congress hazarded the problem -- >> what's your best case? >> milwaukee vs. ill-. they said that congress had addressed the problem. federal common law had no role to play. it is a process in which the

state and the private parties can participate. they can establish principles for rule-making. and it would be inconsistent with that process if they could take a complete end-run and about and ask courts that congress has assigned it. >> this is a merit's argument? >> yes. it says that any federal common law action would be displaced by the clean air. >> is the argument that there in fact no federal common law of pollution? >> i don't think there is very much of federal common law under state pluste pollution claims just because the field has been heavily occupied by statutes. all the court of appeals, they were in a completely different time. the common law authority was extremely law and congress' constitutional power under the clause was very narrow. of course, you're going to have

to struggle with the preemption question sooner or later. you're confident that you can establish not only displacement of federal common law but also preemption of state common law. right? >> it will depend at the time that hypothetical inqurries -- is it part of the eminent federal regular -- >> i don't think so justice kennedy. the question is always what congress has done not what the state of the e.p.a. rule-making process is. congress can create, modify fy or destroy causes of action. and that's why the court said that when congress hazardsed the problem, that's the end of the inquiry. the specific problem here they have a state that assigns the e.p.a. to regulate pollutants and they have been defined to include the precise green house gases that are at issue here.

there couldn't be more a specific answer than letting the courts work it out under federal common law. the federal common law will only be displaced when e.p.a. adopts the precise regulation that pro vidse the pro sice form of relief. >> could the e.p.a. give that -- we're dealing with existing stationary sources. you're not dealing with new or modified sources? >> we believe that the e.p.a. can consider an undertaking to do regulating existing nonmodified sources under section 111 of the clean air act. and that's the one they're engaged now. they will complete a rule-making by may. obviously there could be e.p.a. challenges on a variety of

grounds but we do believe they are the authority under that section and rule. i would like to reserve the balance of my time. >> duh mr. keisler. -- thank you, mr. keisler. >> thank you, mr. chief justice and may it please the court in the 222 years this court has been sitting it has never heard the case with so many potential perptrators and victims. and it is equipped only by the qualitative differences presented today. accordingly the court should provide the prudential standard lawsuits an hold these lawsuits not fit for judicial nuesans. there are billions of emmitters of green house gases in the planet. >> that goes to the merit.

you make that argument to the district court. your injunction is meaningless. equity does not make it in this case. >> for example, nudow on page 11, the court will be called upon to decide abstract questions of wide public significance even though other governmental instructions may be unnecessary to protect individual rights. >> the third thing that it goes to and that's article three standing. it is clear in our cases if as you say the relief requested here will not remedy the complaint of these people. you don't have to go to prudential standing. that to me would deny article three standing. >> this case is like nudow in which they went to that instead

of article three and the reason for that is that this court in massachusetts vs. e.p.a. they were addressing it and said that the reduction that were sought there if granted would quote slow or reduce the problem. >> i'll think about. but nudow we thought was that this particular litigant is not directly injured. here's the defense is directly injured. >> they were trying to assert a right on behalf of a town. and the town themselves did not want that right nor did her mother. so it seems to be it's worlds apart. when you describe prudential a standing involving generalized agreements. i thought that the generalized agreement was on that act. i thought that was ms.

frothingham's case was about. >> justice ginsburg, we're not here saying that this case draws from the facts of nudow. there is no case in the 222 years that announces the precise rule we're seeking here and the reason is because you have never heard a case like this before involving the quantity and quality of the claims sought here -- >> but it seems there is no yace we've used this language of generalized grievance as a prudential matter rather than an article three matter. am i wrong about that? >> i think what they have is they used the language to affect prudential consideration. >> nudow quoted it that came from ward. but it that didn't pin anything on that language. >> i quite agree with you

justice keagan. this is not where the court is required to call into question previous precedent of this court that reached the merits or something like that. it's that this court never had the case involving this scale and scope. and the prudential doctrine which is the court is being asked to fashion the rules, an equitable action where the courts haveabilities to fashion relief appropriate or not. i think prudential standing affects that -- >> how about the aiden case. the government came in and made the same argument even though the injury was concrete it was too generalized. and the court specifically rejected that both as to article there. >> then aiken says that the prudential standing cases thus

far has concrete injury been shown to a particular person. we're not disputing that for purposes of article three. article injury has been show to one plaff. >> you ziss agree with him because he said there's no article three. >> we do disagree that extent. when a problem is of this magnitude literally involving the world where everyone is a potential perpetrator. if someone contributes one drop to the nusance they can be sued. >> your phrase is what bothers me. we don't base a decision on our general intuition and the idea of the standing that we have jurisdiction of the case but we're not going to decide it is

contrary to chief justice marshall's famous line that if we don't have jurisdiction we can't decide. but the we do we have to decide it. >> in the zone of interest test in particular, really do focus on this question, mr.chief justice about whether or not a case can be cut down to judicially manageable standards. >> you're dealing with administrative law in a very narrow proposition. i think it's -- it's justice kennedy's point or at least point of his questions that these issues mold into the merits and at least into anybody who's troubled with the idea that we're not going to decide the case even though we have just diction to decide it. maybe's that's a better way. >> if you're going to give me administrative law and zone of interest i think then you should give me federal common law which this court is at its height in terms of fashioning who can come into this court --

>> i don't understand why -- why you assert that the remedy here will not provide the relief. you acknowledge that, don't you? that -- that the remedy here cannot possibly stop global warming. >> we acknowledge that the relief that they are seeking looks like the relief in massachusetts vs. e.p.a. which is -- >> it does. the relief was allowing a federal agency to regulate the entire societies carbon emissions. >> that isn't what the court said. what the court said it would allow regulation in the transportation sector which would be 1.7 billion tons and here they were saying 650 million tons. and so i agree it's less. but i think that the -- one can criticize the reasonable but that is the rule of this court. and i think that --

>> you think that was the holding of massachusetts when the e.p.a. only regulate the transportation section. >> is that the holding of the case? and do you think the fort coming e.p.a. crules only govern the transportation? >> of course not. >> of course not. of course the case dig the e.p.a. can do. >> i'm talking about the addressbility of it. and for that the court said that this reduction in the transportation sector was deficient. in fact, they took the chief justice invitation to prove displacement. we need their own displacement which is found on page 46 which is a federal common law knew sans claim -- nuisance. and here you have not just the clean air act, you have the clean air act one. you have a cascade of a number of actions taken, the opinion

of massachusetts vs. e.p.a. >> what point in this cascade did the displacement occur? >> we think they don't need to get into it. the reason is that the displacement actions are extremely rare. we don't think you should announce some sort of general standard for when displacement occurs. here you have undoubted evidence bruzz of a number of -- because of a number of different things. >> we don't know what the e.p.a. may do down the road. we don't know what congress willing do down the road. shouldn't we take some sort of precedence -- >> certainly, i think it's appropriate for the court tor find out what's happening right now. first in december of 2009, they

found significant pollutants. >> suppose that tepa decided not to issue the endangerment find and would your argument still imply. it would be like the one the petitioners make which is the clean air act alone wlafment the states themselves acknowledge and what the language of milwaukee -- ex-cousin me milwaukee 1 happened. it made happen that new federal regulations may preempt the federal common law of nuisance. we think that both together presents the best and easiest case for displacement. you have that here. you not only so the enchangerment foungeed. -- >> could you answer the hypothetical i gave you? >> i think that it's a difficult case to make for displacement but it could be made for the reasons mr.

keisler -- >> why sit that much more difficult? it's sort of like the negative commerce clause. the balls has pass frt the courts to the executive branch and they made a decision not to make that particular decision. >> the argument is that the clean air act doesn't look in terms of forcing the agency to decide various things. >> i guess that would billion a preemption question. >> i think that very well may be. with regards to that you asked about state common law causes of action and whether they would be -- the existence of those would mean that the court should either find jurisdiction. and we think that the same argument that prohibit

recognizing a federal common law for displacement may be preemption questions which could be placed douven the road. and we don't think the court should be troubled of an existence common law of action. it's just like a they said if you don't recognize it then the states will do it. >> the question for them is has displacement occurred? >> i understand. but does the government have that if new york law provides exactly the same public nuisance the same and is now asserted under federal common law? >> i don't think we have a position that time right now. our central submission to you on displacement is this is that there is literally no argument here which is that the federal

government has to tedle the specific relief that they are seeking before displacement occurs. here's a position whether or not they can be displaced. do you have a position whether there is in fact a very causes of action. a -- >> there are three that we can find in the federal courts of appealed all of which have failed on displacement reason. we think none of those look anything like the common law cause of action here. and so it would acknowledge this court to extend quite dramatically federal common law this type of situation in which everyone is a phonetial perptrator. and it would require the court

a number of things that the courts haven't grappled with. >> if there weren't noo any clear air act, you would say that the suit would fail prudential standing but you don't have as to whether they would have a claim? >> absolutely. there is a multiple of policy judgments that it would take to aadjudicate federal common law in the abscess of a statute. >> i was understanding your answer differently and maybe i misheard you saying if there were no legislation here, you doubt it that there was a federal law cause of action. >> i doubt it there was prudential standing. you said it was different from the other federal common law cases like the court has seen.

>> i it will require a dramatic extensions. the case like tennessee copper which pollutes a river or hurts b. ta here is the world and b is the world. and that is such a difference in scale and dome poseerer mother mousely different. >> assume no federal statute. what about state common law, did it become displaced because it's a matter of federal concern? we don't usually have jurisdiction other state. >> there may be some sort of displacement under clean air

act. >> the hypothetical is that federal statutory law doesn't fit. >> then for purposes of state common law, the court would approach that as it did before, to say that's a separate, policy-based question, that the court doesn't use to answer whether a cause of action should be recognized or whether displacement has occurred. but i would point out that the states that have sued have doctrines like prudential standing that may very well bar the reaching of these claims in state court. >> it would be odd to say that there's no federal common law but also that there's no displacement of state law. that seems to me -- >> that's precisely the situation that this court was grappling with in milwaukee two. >> given the situation that now exists, they are seeking standards for existing sources.

do you agree with him it is not a new source or modified source, talking about existing sources, does e.p.a., should e.p.a. regulate set standards for existing sources? >> absolutely, justice ginsburg. let me say three things about that. e.p.a. is regulating existing sources to the extent that a power play is modified -- that a power plant is modified in any way, this is one of the tailoring rules, then those power plants are subject to regulation. one has already had to get a permit, these regulations went into effect in january of 2011, for existing power plants that seek to modify. second, there's a settlement agreement in place that regulates by maye of 2012 how and where to regulate power sources and third and i think

most fundamentally, there is no precedent, justice ginsburg, that must regulate the specific thing they isolate. rather, they make explicit that that's the wrong question. so long as the nuisance is being addressed and here the nuisance is undoubtedly being addressed with a panoply of different federal actions with an executive order that says that fighting global warming is one of the government's highest priorities ancon create steps taken such as the 500 page tailoring rule, the 400 page, the other -- the hundreds of pages that e.p.a. has done with its experts to appropriately regulate greenhouse gas emissions as opposed to a federal common law court of action doing something which has frankly put you all at sea in terms of complexity,

economics, international nature. >> could i take you back to another threshold question which is the political question doctrine. a lot of your arguments sound like arguments two and three from baker versus karr, you say we should address this on standing grounds but the political doctrine sounds more like the arguments you're making. why not? >> i'm not going to tarry too long on which way we should win this case, i think either is an appropriate way. but i think the standing doctrine has a variety of factors, including that this is a federal common law cause of action where the court is fashioning relief in the first place as opposed to the political doctrine which looks to the standard nature of the adjudication. we agree this is an appropriate way to dismiss of this case but we think that like other cases,

this court can handle this case on prue ten rble -- prudent rble standing first and realize this is an unprecedented action involving the world and it's not suitable for judicial resolution an whether that flows from the precept of the standing doctrine. >> it's not an area where the court can't go. a political question we'll all agree on, i think, the courts can't mess with the impeachment of the president, but here the court does deal with the subject matter all the time. it reviews decisions the e.p.a. has made. >> we quite agree and that's why we say if a statute were announced to provide standards that would provide a way around the political question problem that would exist in this case. >> thank you, general. general underwood.

>> mr. chief justice, may it please the court, this case rests on the long standing fundamental authority of the states to protect their land, their natural resources an their citizens from air pollution emitted in other states. it rests this on three propositions, one the interest of the states are harmed by global warming, two, these descendants as the five largest u.s. emitters of cardon dioxide are significant contributeors to it and thee, these defendants could take reasonable measures to sle their emissions. that's what discovery and trials are for but this court should not close the courthouse door to this case autothe outset. the common law action for public nuisance has been around for hundreds of years, has been adapped by courts to cover new environmental threats and there's no reason why the

courts can't do the same thing here. the defendants say there are too many plaintiffs, too many potential defendants and that adjudication of the case will require the courts to soft the entire problem of global warming. but that's not so. on the plaintiff side, this is about the state. we are alleging the kind of injury to states that has been traditionally recognized by this court. their lands, their citizens, their businesses are being injured by pollution emitted in other states. >> general underwood, the relief you're seeking, asking the court to set standards for emissions, sounds like the kind of thing that e.p.a. does. congress set up the e.p.a. to promulgate standards for emissions. and now this -- the relief you're seeking seems to me to

set up a district judge who does not have the resources, the expertise, and to kind of -- as a kind of super e.p.a. >> it's not as a super e.p.a. it's something much small . it's a different question. interspace pollution disputes has historically been entrusted to the courts, including the determination of how much is unreasonable. >> but if we concentrate on the relief you want, say district court, if we pass everything else, you set emission standards you put a cap immediately you set a cap, and then annually, you require further reductions. that just sounds to me like what e.p.a. does when it sets emission standards. >> it's also like what the court did in tennessee copper, that is to say this case doesn't ask the court to decide

how much, contrary to what petitioners suggest to decide how much emission or reduction is required to solve the whole problem of demrobal warming and then allocate a portion to these defendants, it asks the court to do something simpler and that is to decide whether these defendants can take reasonable, cost effective measures to help slow the pace of global warming. >> how does a district judge decide what is reasonable and cost effective? there are considerations, this is not a situation in which the emission of greenhouse gases can be totally prohibited. >> correct. >> there are countervailing interests. how does the court, how can a district court balance those interests? >> i'll say two things about that. it was also true in tennessee copper that it was not the case that the sulfur emissions could be eliminated or the plant was to be put out of business. the court in that case ordered a reduction of sulfur, a quite specific reduction of sulfur emigs in one season an more in another season.

>> this isn't orders of magnitude more complicated than that case? >> it's somewhat more complicated, it's larger, i don't know if it's more complicated. the way a court would do that is the way it did it in tennessee copper. there could be expert testimony and whether other -- what other emitters are doing, what they do that is feasible and cost effective to reduce emissions. in tennessee copper, one of the defendants settled and the other was subject to an order. it would have been available to the court to look to what the settling defendant did for some indication of what the nonsettling defendant might well be ordered to do. so there is evidence available from which a court could conclude what is reasonable. >> what factors go into the cost benefit analysis that would have to be undertaken to decide what level of emissions are reasonable in light of the threat of global warming?

>> available technology, the cost effect technology -- >> obviously the greatest benefit to reduce global warming would be, of course, to shut down the power plants, right? >> we haven't asked for that, nobody suggests that would be appropriate. it's not any -- >> but across the economy, the whole problem of dealing with global warming is that there are costs an benefits on both sides and you have to determine how much you want to readjust the world economy to address global warming. i think that's a pretty big burden to impose on a district court judge. >> well, it's also a burden that the plaintiffs would have to bear. that is to say, we have alleged and are entitled to try to prove, and we might fail, that would be for the district judge to determine, that the defendants have available to them practical, feasible, i'm reading from the complaint, and economically viable options for reducing cardon dioxide

emissions without significantly increasing the cost of electricity to their customers, including changing fuels, improving efficiency -- >> you're dealing with an electric grid that connects, i don't know how vast an area, but certainly a vast area here and they can redause their emissions in a way that doesn't affect their customers is based on the fact that other power plays that are part of the grid will serve part -- serve those customers' needs to some extent. >> it may or may not be based on this. these are facts that can be proven or not proven at trial. >> general, they're usually facts determined by an administrative agency. even just reading that part of the complaint, it seems like the thing that administrative agencies do, rather than courts. >> but if there were no agency and if there were no clean air act and somebody were shooting

poissons into the air -- >> but if there were no and if there were no, we would be living in a different world. we have the clean air act. >> those are merits and displacement. the correction of -- question of article 3 standings, the question of feasibility, the question of political question, those are the same questions whether there's an agency or not. >> but we still have the displacement argument in front of us. >> but i understood the question of standards to be addressed to the political question point. even if it might with desirable to have an agency set standards, it is not something that is beyond the power of the court to do. >> the agency is engaged in it right now.

that's another hazard of this case, the potential for conflict. the e.p.a., after acting for a while has now agreed it does have authority to classify, this is a pollutant and it has taken the first steps, one of the things the e.p.a., the united states is presenting, is the way agencies go about this is incrementally, so they're starting with motor vehicles and then they move on to new sources then they'll get to maybe where you are. but you want the court to start with the existing sources, set limits, that may be in conflict with what an existing agency is doing. should we ignore the fact that the e.p.a. is there and that it is regulating in this area? >> no, we do not ignore that.

this is a very peculiar moment in time for this case to arise in this court because what is offered as displacing is something that is said to be imminent, not something that actually exists. and something that is imminent may never happen. it was of course for that reason that i believe the united states suggested a g.b.r. and we suggested that the case be dismissed so the lore -- lower courts could deal with unfolding events as they occur. but the case is here now and there is no federal statute or regulation that currently regulates the emissions of greenhouse gases by existing, unmodified power plants like the one operated by the defendants and the clean air act works differently than the clean water act. it did not put in place a permit system for all emissions when it was enacted in 1970.

unlike the clean water act two years later which forebids all discharges until they're authorized by permit, the clean air act doesn't regulate anything until the e.p.a. makes findings and imposes restrictions. >> i suppose there were reasons that congress adopted this approach and your suit would override those derlingses. >> no, our suit is consistent with those determinations, that is to say, the design of the statute leaves pre-existing law in place until e.p.a. steps in. if the clean air act were sought to displace the common law before any regulation occurred, that would mean the immediate effect of this anti-pollution law in 1970 was to reduce pollution control. >> how much regulation do you need before you would admit there's displacement? is it a pre-emption analysis you're adopting or a displacement analysis? >> i believe it's a displacement analysis.

what we start from is that the states have a historic right to go to court under the federal common law and that to deal with the problem of interstate pollution and that that was a promise that they obtained, the federal remedy, in exchange for the surrender of sovereignty in joining the union. so there has to be, there's a strong federal interest in there being a federal remedy that when the clean air act was passed, without any regulations, if it displaced the federal common law, there would be no federal law applicable at all. because the federal common law would be displaced and there would be no federal regulatory law and the states would have recourse to state common law as has been suggested. that would be available still. but this court has said repeatedly and it's correct that there's a strong federal interest in regulating this subject matter of interstate

solution with federal law. federal common law is the default position and when congress and the agency act to displace federal law an put in place -- to displace federal common law and put in place federal law -- >> what is the test for displacement? when do we tell when this is displacement or not? was there some displacement which is not total displacement? >> there's displacement as to automobiles. the e.p.a. made a considered judgment about emotion -- emissions of carbon dioxide with respect to light motor vehicles. the e.p.a. has made no judgment with respect to sources. >> what has the -- what if the e.p.a. made a judgment but not the judgment you liked. suppose the e.p.a. said we looked at stationary sources

we're not going to regulate. would that displace? >>ic if it were -- >> that sounds like pre-emption to me, not displacement or at least pre-emption with another label. >> there are similarities between the two. in each case we're talking about whether one law substitutes for another. whether one law ousts another. >> maybe you can tell me in what -- to what extent displacement is different than pre-emption. tell me in this area, you're going to have displacement but not pre-emption. or i guess it's the other way around -- what's the difference? you said in response to justice kagen if they've made a considered decision that this is the amount and no other

amount higher or lower, in what way is that different than pre-emption? >> the difference isn't on that front. the difference is that with respect to pre-emption, congress has to decide that it wishes to override state law expressly. here what we're talking about is simply whether congress or the agency has acted. it's a little different. they don't have to have in mind federal common law. they simply have to act in a way that substitutes for federal common law because the promise of the republic, really, for the states was that the states would have a federal law applicable to their interstate pollution dispute. and until there's a new one, they have the old one. >> i don't think they have to have in mind state law for pre-emption either. if indeed the state law just positively conflicts with the

federal statute, doesn't matter whether congress had state law in mind, does it? >> no, but -- perhaps not but we talked about, though, whether there was intent, that pre-emption is ultimately a matter of congressional intent and whether congress intended, and pre-ems should not be lightly inferred, probably the case that pre-emption should be harder to find -- >> you haven't told us how. it's certainly not harder to find because for pre-emption, you require congressional intent. whereas here, whereas for displacement, that's not the difference. what is the difference? i think in this context they work similarly. i would say in each case the question is what is the -- what does the new law do with respect to the law that it is

said to replace? >> i think you're right that under your theory they operate pretty similarly. i thought the whole point of milwaukee versus illinois was that they are two distinct propositions. >> they have different reasons for existing. that's what milwaukee versus illinois said. that doesn't mean they have to in every instance operate differently. the point is pre-emption is about the federal-state balance and displacement is simply -- is about separation of powers and the interaction of various agencies within the federal government. >> so your argument is that e.p.a. -- unless and until e.p.a. gets to the point of setting standards for existing sources, the court can be side-by-side with the agency, we know the agency is beginning, it starts with motor vehicles and then moving forward. but you say as long as the

e.p.a. hasn't gotten to stationary sources, the court can be conducting a similar function with one of many differences is the e.p.a. is setting the standards, they will do it through notice and comment, everybody will be able to put in a submission but the court substituting for the e.p.a., how does the court replicate that? >> the court substituting for the e.p.a., it would be the e.p.a. substituting for the court. that's -- before there was an agency, there was a common law remedy. >> but now there is an agency, we know it operates a certain

way, through notice and rule making. the court, how does it operate to get to those standards? >> we suggest that there's an inexorable march, last something under way but what they point to is an agreament by e.p.a. whether to again considering regulating new and existing power plants. that can't be enough. the federal common law exists for the purpose of giving states a remedy for interstate solutions. if it's displaced when the e.p.a. begins thinking about it, then e.p.a. could think about this for a long time. they said when they hoped to complete this rule making but it is not uncommon for delays to enter into such processes and it could be a long time before e.p.a. actually arrives at a judgment. a lot can happen to delay or derail the fulfillment of a

promise. >> general, do you think you have a federal common law clause of action against anybody in the world? you talk a lot about how these are the five largest emissions producers but i saw nothing in your theory to limit it to those five. is there something that you think limits it to large emission pross deucers rather than anybody in the world? >> yes. i think limitations to substantial sources, and i'll talk in a minute about what that might mean, comes from the restatement definition, from garden variety state cases about -- involving -- and also perhaps from the requirement of the standing itself. this case asks the court to recognize that the states can sue the largest emitters of carbon dioxide and these defendants produce 650 million tons a year, or 10% of u.s.

emissions and individually they produce amounts ranging from 1% to 3.5% of u.s. emissions. there is no other company that comes close except perhaps -- >> you're lumping them all together. suppose you lump together all the cows in the country. would that allow you to sue all those farmers? don't you have to do it defendant by defendant? >> courts sometimes -- >> cow by cow or at least farm by farm? >> courts sometimesing a gate joint contributors to pollution particularly when the relief sought is injunction relief. >> you can lump everybody together. so you can lump together all the people in the united states who breathe, i suppose. >> no, i think that breathers are not really, for one thing, they don't really contribute carbon dioxide because they

absorb as well as exhale it. >> all homes that emit carbon dioxide in their heating system. >> no we're talking -- >> a whole country and you lump them all together and you say that equals 10% or whatever. >> it is not necessary toing a gate to have these five defendants stand apart from everybody else. >> then don't give us a 10% figure. give us the maximum figure for a single one of them. >> 3.5% of u.s. emissions. >> why d you stop at u.s. emissions? what percentage of worldwide emissions, every one of which i assume harms your clients, do these five power plants represent? infinitesimal, right? >> not infinitesimal. you would divide these by four --

>> from power plants or total emissions? >> total emotions. >> and anybody who is a substantial contributor could be sued. >> yes. and in terms of determining who is a substantial contributor, because i do think that at some point a company's emissions or a cow's would be too small to give rise to a standing -- to either standing or nuisance claim and there are various ways to draw the lines. it's a familiar task for common law courts to decide how much is substantial, too. but for example, if the cutoff were producers of 100,000 tons per year as in the e.p.a. tailoring rule for new sources, just to take an example, then according to e.p.a.'s own technical data, there would be at most a few thousand potential defendants. >> the general began his argument say we have never in 222 years had a case where the damages and relief sought were as broad as they are here.

do you have anything to rebut his proposition? any case where it's been as broad as it is here? >> it depends on what you call broad. there are many cases, small cases, involving an attempt to limit discharges by companies -- >> what's your candidate to rebut his proposition? a brder case with respect to the inflick of damage and the need for relief? >> well, i guess i would say that cases allowing suits against large contributors, with or without others and dismissing against small and remote contributors, i'll give you three state cases cited in our briefs, a california case about a large mine that was sued for polluting a river when lots of others polluted it and were not before the court. >> not as many as contribute to