>> may it please the court. the situation here is unprecedented in two respects. one, the epa agreed that -- according to their terms result in a program that would have been unrecognizable to the congress that enacted it. country to congress's and 10, the agency calls a absurd. epa to the conclusion -- took the conclusion as a basis for re-writing other parts of the statute. the agency wrongly believes it fixes the problem. this is not a one-time act of statutory rewriting. the agency has said it intends to adjust and readjust the

thresholds based on its ongoing assessment of the costs and benefits. >> may i ask about your interpretation of the phrase -- there are a lot of different interpretations that have gone on. here is some choices. i want to ask you to pick what you are arguing for. your original position was that any pollutant meant -- that was your original position. judge kavanaugh's position is it means any max pollutant. -- any naaqs pollutant. there's another position that says it is really any regulated

pollutant other than greenhouse gases. those are four different interpretations. i guess i am asking you which one you are arguing for. >> i am here on behalf of the private party petitioners. we have two arguments. the principal one of is the one i would like to focus on. and that is because -- and that is where i would choose an option -- the pst program is focused on omissions that have specific impacts. and not globally undifferentiated phenomena.

>> i take it that the sort of ozone pollutants are not area specific. would your interpretation at who does? trucks if the epa could not make an -- >> if the epa could not make a regulatory finding -- >> can i ask a follow-up? that to me is the quintessential ambiguity and a statute where we give deference to the agency. if your side cannot even come to one interpretation, why shouldn't we defer to the agency? >> the deference is always subject to reasonable interpretations. >> all it says as i understand it -- other than that you review there are too many people it is regulating -- is that we cannot

implement it immediately. it hasn't said with streamlining and other adjustments, it cannot do this. it just as we can't do it right away. >> i would like to roof -- explain a deeper problem and then address why it is the only

correct interpretation. >> kenley clarify whether you agree with the dissenting -- can we clarify whether you agree with the dissenting judges on the d c circuit? you've got a footnote saying there are a lot of differences. your reply beef -- brief turns 180 degrees from that. >> i understand that having six opening briefs is that the most helpful way to present our position. there are two arguments. our principal argument, and the one i would like to focus on, is that greenhouse gases are not included within the pst program. -- psd program. >> that is the clause that they are not local. >> yes. >> what you make of the endangerment finding that they have severe effects at the local level?

they exacerbate ground-level ozone and smog. >> every effect that any environmental phenomena has will be felt in some local area. our point is that is not the kind of measurable regionally affect that the psd statute refers to. >> it certainly not measurable. >> before you do that, we have an outstanding question. >> the problem is not that the agency rewrote the threshold and said we would eventually try. when they say they want to get down to the apartment buildings and high schools, it is contravening congressional intent.

>> i read them as saying they will try to do it, but make whatever it dungeons -- make whatever exemptions are necessary. >> be exempt if they are talking about, in order to seal with the exemptions, are to have general permits by category. >> it clearly is not a matter of the epa saying, we cannot do it right away. we will do it eventually. >> if they did say that, they would be violating a statute in the worst ways. >> do you really mean to say the only difference between greenhouse gases in the air pollutants that congress had in

mind when it enacted the clean air act is green hair -- house gases do not have a local effect? what about -- the quantity is greater and that is why there is a discrepancy between the thatcher tory threshold and the one that epa has? -- between the statue a tory threshold and the one that the epa has? >> one is the one that your honor and justice sotomayor were referring to. design for -- whether you rewrite the threshold or

regulate down to the infinitesimal level, you are rewriting the threshold. another is the requirement that this particular program be focused on these area specific air-quality impacts. there are three central features of the psd statute that we think show that. the first is section 7471. which is on page 1380. that is the -- 13a. that explains what psd refers to. 7470 one says the program consists of emissions limitations as may be necessary to prevent significant deterioration of air quality in each region. air-quality in each resident -- region -- regionally defined effects on the air people breathe.

>> there are many statutes and the wrigley tory area where congress passes a statute -- in the regulatory area where congress passes a statute. it turns out there are so many -- often, i would think courts read in an exception. for example, if there were a statute that said you have to throw out all bubblegum that has been around for more than a month, what about bubblegum used in a display case that nobody intends to eat? we can say, it doesn't mean to apply to that. why can't the epa do that as well? it doesn't make sense here, so we read in exception into it, unwritten. >> i don't know that there actually is a president that says the agency can do precisely what it did here. -- a precedent that says the agency can do precisely what it

did here. >> i am a little confused. there have to be pollutants where it doesn't and that just 250. -- e-mail to just 250. -- emit just 250. it in minutes -- emits one million. it can't be your view that the statute was written only to get to measurable pollutants that are at 250 or can be wrought below 250.

>> it's not our position that the purpose of best available control technology is to bring facilities below 250. >> that's a minimum -- >> g hg something that is about that. it will never be brought below that. >> it is above that for millions of entities that congress intended to exempt. >> if i could follow-up on justice breyer's question. you keep saying, epa is violating the specific term. the conundrum this case raises is everybody is violating a statutory term. epa is saying we can't do the 250. it says any pollutant. or each pollutant subject to

regulation. nobody would think that the most natural or reasonable readings are any pollutant if they have localized effects but not otherwise. what has happened here is you have this new kind of the mission -- emission that makes the terms of the statute you reconcile. -- you're reconcilable. -- irreconcilable. why isn't that the more reasonable of the two things to do? we don't agree that those two dilemmas are equally situated.

certainly, 100 and 250 tons per year is a clear command. the question of how to interpret air pollutant -- >> one is a number, but the other -- each pollutant subject to regulation -- the epa has treated those phrases as meaning a single thing, which if you put aside the absurdity problem in this case, everybody would agree is the most reasonable interpretation. you are saying the epa should jump that interpretation because there is a new kind of chemical that makes the numbers not work. >> it goes much beyond the numbers. i think if anybody was looking at the psd statute in isolation without the benefit of massachusetts versus apa, --

versus epa, they would conclude it refers to pollutants that only have the area specific impact. it is also two other features of the statue which make it unambiguously clear. the first is section 7475 ee. that mandates the one an analysis that has to be conducted in every permit in process and the one analysis congress is required be available for public hearing.

that is the analysis of the conditions at the site of the facility and each area that is going to be affected. books we began the discussion by saying putting massachusetts versus epa to one side. i was in the dissent, but we still can't do that. [laughter] >> assume we are bound to by both the result and reasoning of that case.

and also the american electric versus connecticut case. what regulatory force, significance, do those cases have under your approach and that by the chamber of commerce in the blue brief? that might be consistent with the subject we opened. >> let me turn to connecticut after doing massachusetts. the same day that massachusetts came out, this court decided environmental defense versus duke which decided -- even when a defined term is construed a particular way, it doesn't mean the same term can be construed differently where context requires. that is why massachusetts, after indeed holding that the definition of pollutant included greenhouse gases, didn't go there -- stop there. it asked whether applying it to the title ii provisions on motor vehicles would yield extreme measures or counterintuitive results. only then did they direct the epa to apply the definition.

they understood that the literal definition of pollutant was sufficiently broad that it should not be applied without some additional analysis of the context of the provisions. >> what else does it cover other than the -- mobile vehicles? >> there are multiple places where it appears in the act. they have interpreted the words, any air pollutant to mean any subset of the pollutants that this definition -- >> that is because the section that it is in is a different definition directly. >> that is not correct. in the pstn title v provisions, -- the epa has interpreted that to mean any regulated pollutants. same thing with the provision on disability. >> your answer is they can be treated differently under different parts of the act.

>> it was an act of interpretation in epa versus massachusetts. reading that decision as a whole, what did the court give to that interpretation? -- if it weren't the case that that was an additional part of the inquiry that was necessary. >> what else? aside from psd. >> it excludes the new source performance standards program of section 111. this case is not about whether the epa can regulate greenhouse gases from stationary sources. this is about whether state and local permitting authorities, the 90 plus authorities, are

supposed to regulate plant by plant under this particular psd program. i mentioned the nsp is program -- the nsps program. nsps does not have the thresholds. it lets the epa decide what categories of sources are most contributing. it doesn't require the analysis of subsection e, which the epa has told authorities not to conduct because it cannot be done for greenhouse. -- greenhouse gases.

it permits the epa to do this, a national uniform emission standard. rather than asking 90 state and local permitting authorities to decide plant by plant what they think each plant in their jurisdiction should do about -- >> in your opinion, is it 7411? you are saying they could use 7411 to get to the same place they are today. >> they are doing it, your honor. >> that i don't know what this case is about. can they do the same thing under one provision or the other. >> it is not exactly the same thing. it is the difference tween having the epa -- between letting the epa have national omissions standards -- and then the plants can -- versus this

command-and-control psd system. where each authority thinks -- has to decide which mechanisms to use. >> it says such standards with such modifications as he deems appropriate. that is the language. if this is the right program, why couldn't they copy it word for word into the rules and just put a different section number at the bottom? i know you'd have a preferred way to do it, but if a disagree with you and they think this is the perfect program, why can't they do it? >> the statutory language and structure of the psd program does not encompass these kinds

of pollutants that have globally dispersed results and not area specific impacts. for the reasons i have indicated. 74 71, which says the significant -- prevention of significant deterioration is focused on each reason. -- region. the fact that this was assigned to 90 state and local permitting authorities. >> you were going to discuss not just the massachusetts case, but the follow-on case. connecticut. >> the only point to make about that is that is the case that held that the epa has authority under section 111 to a dress greenhouse gases without having to what is it is trying to do here.

it has to do it through national omissions standards. connecticut did not approve the psd provisions here. >> the other thing you are going to get -- you only got to 74 lebanese. -- 7411 (e). >> prevention of significant deterioration. the only required study as of local conditions. this is a sign -- assigned to 90 state and local agencies. for global problem like global warming, we think state and local authority should make the

decisions rather than epa. >> you're reading would say that the agency was not permitted to make a criteria in naaqs. >> if they had tried to establish naaqs for greenhouse gases, that would be contrary to the stature's -- standards. those are all about regional standards. if the gas goes up to the atmosphere and met since -- is

mixed there, it doesn't work. >> take another five minutes in we can -- and we can begin by answering the question. the government -- the first point in their brief is that greenhouse gases can be regulated with respect to sources that are already covered by psd. that position does not advocate your concern about the broad reach of epa regulation, does it? >> i think it does your honor. while that might deal with the specific issue of rewriting the

thresholds, the fact that the psd provisions for the reasons i have indicated is limited to air quality impacts would be violated merely i applying vest available -- best available controller technology. >> they would not -- only be applying that with respect to sources that are already required to operate under psd permits. >> that's right. i would see your honor, that while they have tried to separate those issues out, there's one issue about who has to get up permits any other issue is about the best available control technology. what they've done is say the words subject to regulation shall only apply to greenhouse gases if you're committing them at levels of hundred thousand

tons per more. they rewrote the permit -- provision that says who has to get a permit and they rewrote the best available control technology. i'm not sure how much time i have. [laughter] if i could then turn briefly to the second argument. an argument -- if not, we have a second narrow argument. which it dresses the requirements for triggering the psd statute. our opinion is very much like judge kavanaugh. it is only triggered by major amounts of a pollutant. >> that is not judge kavanaugh's position. his position is naaqs. >> we are focused on the language of any area to which this part applies. it is because parts see applies not -- part c place to some areas and not others. >> can i ask why judge kavanaugh's argument has been left by the wayside.

>> we get that with a slightly different result. >> it comes from different statutory language. i think notwithstanding that there is some overlap between the arguments, the legal rationales are entirely different. i am curious. >> this is the argument we made below. the point -- >> i don't think that answers the question. i know that is the argument. are you saying you cannot defend his argument? >> it is just that it has been hard enough to make two alternative arguments in the form. -- forum.

[laughter] >> can we have -- the next criteria. for 30 years it has been adding things. what about all those? fax your honor, it is true that since 1980 -- although it propose our interpretation as its original interpretation, epa has said any pollutant would be sufficient to trigger permit requirements. that has had virtually no practical effect. all the other pollutants, we

have only been able to find two or three exceptions over 30 years, invariably they are also committing one of the criteria pollutants. this made no difference until greenhouse pollutants came on the scene. >> >> thank you, counsel. general mitchell. >> mr. chief justice, and may it

please the court. there are two issues in this case. the first is that the term air pollutant cannot be given -- even after the ruling in massachusetts that it includes all things airborne for purposes of title to. -- title two. the unambiguous statutory requirements of those programs are incompatible with regulation of greenhouse gases. the epa thinks it can fix this problem by imposing in age and she created regime -- and agency created regime. congress does not establish round holes for square pegs. and agency cannot make a whole square by rewriting language. >> the language you are referring to is the references to 100-250. it seems to me that is an odd term to drive such an port and interpretation -- such an important interpretation. those were about the size of the

facility. they were not supposed to have -- they were not supposed to make any distinctions as to the type of pollutant. you're essentially using those numbers to make distinctions as to the type of pollutant rather than -- it seems to me a more sensible approach would be to say the numbers don't work for this new kind of pollutant. we will up the numbers. that will leave the rest of the statute and all the purposes of congress intact. >> the reason we think you'd -- we don't think this approach is permissible is because there are provisions in the clean air act. 7661a says epa and -- cannot exempt any source. because that is in the statute, epa cannot be claiming to seek discretion when congress has held that kind of discretion. that is akin to dispensing

program -- power. the question to ask is whether the term air pollutant's flexible enough to accommodate. eta -- epa agrees it can mean different things. massachusetts said that air polluted includes anything airborne. but epa has refused to carry over that definition. one of them is part of the sps program. --nsps program. epa does not interpret that to mean all things airborne. it doesn't even interpret it to mean all regulated pollutants. the psd and title v -- the mean any regulated air pollutant. finally, they interpret the phrase any pollutant to mean any visibility impairing pollutant. if this is forced to be apply to every provision of the clean air act, all the epa interpretations would have to be discarded.

>> if you think about the definition, you are saying what does any air pollutant mean? does it mean what epa has said it means for 30 years? or does it mean something more along what -- along the lines of what you are saying? you would obviously 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 only or does it mean something more along what -- along the lines of what you are saying? you would obviously 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 only to distinguish between major and minor imagers. -- emitters. if you can distinguish between them, why wouldn't you do that? >> because it is not clear that phrase unambiguously means that. >> let me ask you a question. assuming we agree with you that neither massachusetts or alabama -- there is no statutory command to come to epa's conclusion. what do we do? do we just reversed them, or do

we tell them, no, you are wrong at step one. there is ambiguity in the statute. >> we are asking the court to hold that a greenhouse gas interpretive -- inclusive interpretation does not fit with the unambiguous designations of the programs. just -- >> i think where justice kagan was going is put the definition from 7479 in your mind and it mean something. you know what i am talking

about? the definition of the major emitting facility. it says you have to have a permit. football game they have to have a permit or all my relatives are together, they have to have a permit. it can't mean that. so we have two choices. choice a, which is what you

would like. if it means any air pollutant, air regulated air pollutant but not greenhouse gases. that's choice one. choice two is it means any air pollutant including greenhouse gases but implicitly e.p.a. has the authority to exempt small emitters. see? now, which does the less violence to the statute? >> choice one. >> i knew you would say that. \[laughter] >> the reason choice one does less violence is because the term air pollutant is flexible and has been acknowledged to be by the e.p.a. for decades. it's permissible for an agency to construe ambiguous statutory language to avoid absurdity, in fact it must before taking choice two, to rewrite unambiguous statutory language. if the simple choice were between one unambiguous statutory provision and another, then e.p.a. would have a much stronger case for deference here. the problem for e.p.a. is that they have insisted for decades

that it can mean different -- >> i get that. but if you had been sitting in congress and the senate, mr. billings i think is the staff person and senator muskie and suppose you had this choice put to you with your language, we'd either like to have the authority implicit here to exempt the football team, the tiny emitters or we'd like to not to cover it at all, which do you think the senate would have chosen? >> i think they did make a choice and it's in the language of the bill that the e.p.a. does not have the authority to exempt any main source from title 5. they say that right there on page 4 --

>> title 5 is not the p.s.d. requirement. it's just a record-keeping provision. >> that's true. >> so why should we exempt people from title 5? that's not what's causing the burden that you are talking about. it's just a record-keeping provision. >> but it's a very burdensome recordkeeping provision, by -- which e.p.a. acknowledges. that's why they're not willing to impose it on every entity that emits more than 500 a year. it's possible to impose that on large industrial sources but not on a corner deli or the manager of a high school. so again to return to justice breyer's question, which would congress have chosen, rigid,

narrow permitting thresholds, to up hold from the department those unambiguous requirements, but instead they provided looseness in the definition of a pollutant which even though this court held unambiguously includes all things airborne, e.p.a. has narrowed it -- >> if you can narrow it, why not narrow that one? any air pollutant including greenhouse gases to the extent that they can be sensibly controlled under the statute. now i've worked with the word air pollutant. i can do it any way you want. we do have exceptions when agencies enforce statutes.

we do have exceptions from general language all the time. >> i don't think it would be a permissible act of statutory construction to say that carbon dioxide can be an air pollutant and not an air pollutant at the same time. >> you would accept his definition, wouldn't you? air pollutant means any air pollutant that can be sensibly controlled under the statute? >> it can't -- >> it can in large quantities. you don't see anything wrong with large quantities. it's just the small ones you have a problem with. are you saying it doesn't make sense to control major pollutants? >> we're saying because of the unambiguous requirements it requires e.p.a. to fix the small problems. >> what would congress have wanted, given the obvious purpose of the acted. that's an important question. the other question is what did the agency define here? this is the apex of chevron deference. there is nothing that gets more deference than this agency with respect to this complicated a statute. even if 24 arises from -- because there is this new kind of emission which makes the two terms in the statute

irreconcilable, why isn't that a classic case war -- where the agency gets to cloose how to make the thing work as best it can when a changed circumstance makes it work not entirely the way congress had fore told? >> the court rejected that very idea in brown and williamson where tobacco -- tobacco was trying to be regulated by the fda where nicotine was clearly a drug if you looked at the definition in isolation but the requirement of the food and drug administration -- >> to accept your argument we'd have to reverse massachusetts? >> not, no, not at all. justice. >> well, you're saying congress didn't intend to control this pollutant. we said there that it did. >> no. the court only needs to revisit massachusetts if it believes air

pollutant must have a uniform, unambiguous definition everywhere it appears in the clean air act. not even the e.p.a. is making that assertion. so there no reason for massachusetts to conclude at all that in the context of the program that it's not possible for the court to construe greenhouse gases. if the court has no further questions i yield my time back. >> thank you, mr. planinicel. >> mr. chief justice and may it please the court, greenhouse gases pose the same threat to health and welfare when emitted from a power plant as from the tailpipe of a car. in american electric power this court said it was plain that this court has the authority to regulate generally from sources

like power plants but it said it lacks any authority to regulate the same emissions from the same sources causing the same harms? that's not a reasonable reading of the statutory text and it reverts on a fundamental misunderstanding of the p.s.d. program and -- >> why would it be unreasonable to give the e.p.a. authority to regulate mobile sources and not stationary sourced given that the stationary sources have to be licensed in this fashion and it produces all sorts of other problems? it doesn't seem to be irrational at all. >> well, the court said, i think, that it was plain congress gave the e.p.a. the authority to regulate stationary -- regulate stationary sources. that i think gets to a fundamental premise where the

petitioners are just wrong. section 74-11 in the p.s.d. program are not deemed as different problems. they're aimed at the same problem and you can see that from the statutory text. for example, if one looks at section 74-75 a 3 which you can find at page 21 a of our appendix, you will see that in order to become eligible for psd permit if you're a major emitting facility you've got to, and if you are looking at subsection 3, under 3 a and 3 b you've got to show that you can meet all of the local air quality requirements of the naaqs, those standards and then you have to meet any other applicable standard of performance under this chapter. that language is not an

accident. in 7411 the nationwide standards that are set that mr. keisler was discussing are called standards of performance. so it's specifically picking up the section 74-11 standard. then if one turns to the definition of best available control technology under the p.s.d. program which you can find at 34 a of our appendix to the brief, you will notice that congress specifically linked the operation of the 74-11 standards and the best available control standards under the p.s.d. program. what it says is that once congress has set aunder section 74-11, a nationwide standard, that becomes a floor for the evaluation of best available control. >> are you reading subsection three a, b, and c, are you

reading those in the alternative? i read that all three have to be complied with. >> yes, they all three have to be complied with. >> then that does president help you. you are right back where we started, we have the tonnage per year requirement. >> well, i'll be happy to get to that but if i could just finish off this point about the connection between the operation of the two because i think it's of critical importance here. what you are supposed to do is use best available control technology to get above the floor. the program sets those standards every -- on an eight-year basis and the purpose is to keep raising the bar during those eight years. this goes back to senator muskie in 1977. the program was enacted adds part of the 1970 act. the psd program was added in 1977 because of dissatisfaction over both the pace and the

comprehensiveness of the air pollution regulations that were being -- being enacted by e.p.a. under the 74-11 standard because under 74-11 e.p.a. has to go one source at a time, power plants, factories, and then the next thing and the next thing. the point of the psd program is to put in place additional requirements. this exactly what copping was after so that when there is a standard on the 74-11, you keep raising the bar but whether there isn't a standard, psd is supposed to fill the breach. it makes sense because the program applies to new construction or major modification. the idea is that you wanted to

get in there at the beginning when the source is first being constructed so that they don't lock in old pollution-causing technology, they've got to meet best available control technology the >> i think i have an idea what that looks like with respect to sources already regulated because they're relating to the naaqs, filters, scrubbers, all that. i'm sure that's oversimplefied. but what does best available technology look like with respect to greenhouse gases? >> it's an evolving technology, and there are now permits issued and very helpful discussion in two places. the state respondent's brief pages 335-39 and the cal pine amicus brief. cal pine is a major utility -- >> but am i right that the greenhouse gases do not affect ambient air quality in a way that the current or naaqs provisions do?

when you're dealing with regulation of energy usage, right? as opposed to emission of lead or -- >> well, the main thing now is significant energy fishs. -- efficiency. for example, different kinds of turbirnes and processes -- >> the same as for domestic, energy efficient light bulbs. >> i really don't think this is about light bulbs. mr. chief justice. >> no, but my point is that at the moment that is largely true. >> of course the e.p.a. is considering and scientists are trying to develop other technologies like carbon capture technology that. -- and that's the whole point of

best available control technology, that as best -- better options come on line, it allows for that. that's how the statute is supposed to work. >> if you regulate -- i'm trying to understand the arguments in your brief. if you prevail on the first, in other words, greenhouse gases may be regulated with respect to sourced already subject to permitting, my understanding is it gets you to 80% of the greenhouse gases. >> that's correct. >> prevailing on the second gets you to 86%. >> that's correct. >> so this is a fight about an additional 3%, and yet according to the petitioners that brings in there huge regulatory problem of regulating the high school football game and whatnot the just on -- as an aside, human beings are actually net neutral on carbon emissions.

you will need a chimmist to explain that but it doesn't matter how many family members you have. but with respect to the lights at the game. maybe. but no, there is a significant expansion of the permitting obligation under 9 e.p.a.'s understanding of permitting. but let me try to explain why it's not just about the 3% and then get back to justice kennedy's question. the problem here is that the options, one of the problems, significant problems, is that the options that the american chemistry council have advanced and even that judge cavanaugh has advanced would require an invalidation of or at least a significant revision of e.p.a.'s 34-year understanding of the meaning of the phrase "any air pollutant in 74-79-1 which they have always interpreted to mean any air pollutant subject to regulation under the act. you can't apply that 34-year-long agency

interpretation here and get to one of those results. you've got to change it. >> but a 34-year agency interpretation is not a statute. >> no, it's not. >> and you are saying rather than alter our 34-year interpretation we're going to revise the provisions of the statute. i don't think that's a good trade. >> well, with all due respect i don't think that's what the agency is doing the if i could just finish this off. if you take the -- if you draw the line either at net pollutants or all other previously regulated pollutants or if you draw the line at local pollutants but not other pollutants, you knock out some sources that have been subjected to the permitting requirement previously. >> can i ask you this question about e.p.a.'s position? because this is something i don't understand. on the one hand the e.p.a. says

that applying the statutory thresholds to greenhouse gases would transform the p.s.d. program into something that would be unrecognizable to the congress that enacted the program, isn't that right? >> yes, they did say that. >> on the other hand e.p.a. says but that's what we're going to aim to achieve at some point down the road. >> no, that's a fundamental misconception and i'll try to answer your question also, justice scalia the. what e.p.a. is saying this is a transition. it's not a rewrite and the gel is not to gradually expand the permitting requirement until they have all of the donekin doughnuts in america under it. it's the opt. they're taking a look at the standards used to decide who is eligible for a permit and looking to change those to the extent they can consistent with their statutory authority and appropriate chevron deference to essentially appropriately narrow the numbers of people deemed eligible.

>> i thought e.p.a. said well, we're going to work toward that? >> no. let me give you an example -- >> well, i don't understand the position. if applying the statutory thresholds makes the program unrecognizable and yet that's what they're going to aim to do down the road, get to the statutory thresholds, will it become more recognizable at that point? >> under the nuance there that i think answers your honor's question, the agency has discretion in deciding what constitutes the potential to emit 250 tons per year. what they have done historically is evaluate that on the basis of ansumption that the facility is operating 24 hours a day --

>> thren narrow it down to 31,000 people fully within this. you get title 5, 6.1 million. that sort of changes -- if that's the question, does in fact this provision give the e.p.a. the obligation to impose permit requirements on 41,000 businesses of the size that constitute at most 10 to 15% of the problem, that's pretty hard to accept. what i thought the wea was, was whether e.p.a. had the authority to implement this in a way that e.p.a. itself thinks makes sense. which might be on their own reasoning to not impose permitting requirements on tens of thousands, perhaps millions of small businesses. i thought that was what the question was.

>> it did seem to be the way they put it. >> it is, but i think the two things converge, justice brier -- breyer. if you apply the standards e.p.a. uses now, to sweep in all these people, and e.p.a. says well, -- >> but the words they used in their opinion were streamlining. >> r50eu79 >> the words they used in their opinion implied to me that they're never going to want to put tiny boilers under this because it just doesn't do much good and they're sentence -- expensive to administer. that's how i read it. >> right. >> this has been very helpful. i learned i'm not a net emityitier -- emitter of carbon dioxide. i thy -- am part of sustainable development. and one more thing -- look, 74-11.

remember the what chief justice just said about the 83% and the 8% and even if you lose you can still regulate 83% and if you win, you can regulate 86%. my goodness, the 74-11 is over there letting them to to -- do precisely what they want. why do you need this? that's the part i haven't got a clear answer to in my mind. >> it's the reason i tried to suggest earlier, justice breyer, that it's supposed to work at -- as a complement to 74-11. it's being used now, at least the e.p.a. is contemplating setting greenhouse gases. -- for power plants. that's a very significant emy. er but not the only one. >> put those all in. write standards that require them to get a p.s.d. permit. what's wrong with all that m >> they can.

by the problem is that's going to take a lot of time. that was the very reason congress put the psd program into existence in 1977, because of the dissatisfaction, the time it took to go source by so, pollutant under pollutant under the 74-11 program. >> i just want to make sure i understood correctly. under 74-11 you can require a p.s.d.? >> no. you can set a national standard. part of the reason i said i think it's just wrong to think about the p.s.d. program as addressing a different kind of problem is that you've got to meet the 74-11 standard in your p.s.d. standard. >> let me get back to justice alito's question because i had a similar question. it seems to ple it would be completely responsible and understandable if e.p.a. had said the 250 don't work with respect to this category of pollutant. congress didn't know that this pollutant was out there when it wrote the numbers.

it was trying to distinguish between major and minor emitters and the real yubs are x and y for this type of pollutant. i understand that the e.p.a. may have felt oh, gosh, can we really do that? but the solution e.p.a. came up with seems to give it complete discretion to do whatever it wants whenever it wants to and to -- it seems to be much more problematic if they just it to 250 or 10 times that. >> i know it's been portrayed that way but i think they're trying to do the opposite. they're trying to say look at what happens when you emit 240 tons a year and use that for analysis of how like -- much this source is likely to em -- emit and you could drastically lower the number of sources to be found to emit 250 tons a year.

that's their objective here. >> are greenhouse gases the only air pollutant for which e.p.a. has the authority to change the statutory thresholds? >> well, the -- i'd like to make a point if i could about that. the real problem here is co 2. you actually have the six greenhouse gases, the other five you could use the statutory thrernleds on -- thresholds on without difficulty. the co 2 causes the difficulty. >> could they use this for any other pollutant besides greenhouse gases? >> they're saying we have an obligation to regulate. a regular -- an obligation to regulate when it's more than 250 tons a year and an obligation to get the permits out in a year. i don't think it is that they're asserting authority to rewrite the statutory thrernleds. they're dealing with a practical problem that's arisen under the present circumstances. >> e.p.a. said in the explanation of this rule that e.p.a.

could say that p.s.d. or title 5 applies only to certain g.h.g. sources. it's been suggested that that would only apply to certain g.h.g. sources and does not apply to the remaining g.h.g. sources. but you didn't seem to be any follow-up on that idea. >> i think the reason, justice ginsburg, is because that is not going to make -- the carbon dioxide is also a huge part of the problem so you're really not going to be getting to the heart of the problem and there really is an urgency here. part of what is driving the e.p.a. is understanding that this is an urgent environmental problem.

it's the greatest environmental problem we face now in e.p.a.'s judgment and it is one that gets worse with the passage of time. the effects of -- are cumulative and they're delayed and so every year we wait, we make the hole deeper and create an even deeper threat to future generations. >> i'm sorry. i didn't get an answer to justice alito's question and it's an important one. there are of -- there are

currently criteria of pollutants under the statute. one that does cause harm to ambient air quality not already covered and if you cover a n.a.q. for that, you decide you want to regulate at a different threshold, just like here, is this a particular assertion of authority only with respect to greenhouse gases or does it only -- >> if you are going to use the n.a. -- naaqs source then you would be under the rules of naaqs pollutants. but -- >> can you publish an act for greenhouse gases? >> i think it would be within e.p.a.'s authority to do so but there are significant problems with trying to regulate that way. it's important to understand, mr. chief justice, that the

p.s.d. program applies to more than just naaqs pollutants. >> ok. if there is a pollutant that isn't currently regulated and science advances to the point you think it should be, could you change the threshold for that? >> i guess i would say e.p.a. would find itself in exactly the same circumstances it finds it elve in respect to greenhouse gases, it feels like the statute compels it to regulate, it kicks in atd 250 and you have to issue a permit inn a year. that would require that confluence of circumstances. >> why does it have to do that? statutes all the time have implicit exceptions and not every statute has such exceptions written in words into it. i mean, you know, it's a classic example, one after another. stat ute that requires animals to pay 50% on the train does not apply to snakes.

ok? i mean that's the most common thing in law. so what's the big problem here with -- that everybody seems to have except me, i mean what's the big problem with writing an implicit exception so that you don't regulate tiny little things which no one normal i wants to have regulated? >> if the court were to do that, that could -- would certainly justify the e.p.a.'s judgment here -- >> the problem is that i will hear from many, perhaps it isn't a question of what i would like to do, the question is what does the law permit and therefore it's helpful if you can or others think of similar examples. >> well, e.p.a. has committed itself in the regulations, in the rule-making proceedings to try to bring the 250 tons per year into alignment with the expectation that only large sources will be regulated. that's what e.p.a. is committed

to. >> general verrilli, i don't have an expansive notion of reading exception into a stat tute -- statute there are not there as justice breyer does but just assuming that you can read exceptions, that isn't the issue here. the issue is whether you can make exceptions unnecessarily whether the absurdity in question doesn't flow inevitably from the statute. when the statute can be interpretted -- interpreted toot way that would not produce the absurdity, aren't you compelled where there is ambiguity to adopt the interpretation of the statute that does not produce absurdity rather than adopting the interpretation that produces