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

absurdity and then going around altering the provisions of the contract? of the statute? i mean to take justice breyer's bubble gum example, yes, i suppose, would you have to make an exception for bubble gum in the display window if the statute were subject to two interpretations, one of which would include display windows and the other one of which wouldn't? it seems to me of course you would have to adopt the interpretation that didn't include display windows and that's what's going on here. yes, there is absurdity but the issue is how is that absurdity to be taken account of it -- of by simply letting e.p.a. rewrite the very clear language of the statute or else by adopting a perm is -- permissible interpretation of the statute that does not lead to that absurdity? i think that's quite a different question from what we've been discussing. >> two points about

that if i could. first, that goes to the question of what triggers the permit. play-action. -- application. it's only the expansion of the number of permit applicants that even raises this question of so-called absurdity. it doesn't go to the argument -- the petitioners are making a far more substantial argument that e.p.a. lacks any authority to consider greenhouse gases emissions under the provisions even for source that's have a permit for their emissions of nongreenhouse gases. so it only goes to the question of the scope of the triggering provision, not to e.p.a.'s authority to use p.s.d. to regulate greenhouse gases for entities that are already subject to the permit for other reasons. now, with respect to the trigger, would -- what i would say about that, justice scalia, is that the statutory language is any air pollutant. reading massachusetts versus e.p.a., the e.p.a. came to the conclusion that that language necessarily encompasses greenhouse gases emissions. that conclusion is most consistent with the e.p.a.'s

statutory obligations here because if the choice is -- you can say the choice is between doing something sensible and absurd results, but really the choice is between throwing up your hands with respect to what e.p.a. considers to be the most serious air pollution problem we have or trying to deal with the imimplement akse problem we have -- >> wouldn't it be right to say that the rule justice scalia is referring to only applies if there are alternative interpretations that are consistent with the legislative purpose? there have to be plausible alternative interpretations of the statute and reading the statute to mean any pollutant except greenhouse gases except for purposes that have nothing to do with the statute, is not a plausible -- >> that's exactly the argument and what massachusetts did when it read massachusetts versus e.p.a. and thought about that in the context of the regulatory goals -- >> the whole worse -- course of

the argument against that is that no, the statute evidenced concern with ambient area -- air quality and requires that to be measured and the agency acknowledges that you cannot possibly measure the effect on ambient area quality of greenhouse gases. so it is not a clearly compatible with the statute to bring greenhouse gases into regulation. >> and the other is -- this is quite -- i've got it focused now it seems to me in my mind that we have two questions and i think they were well stated by justice scalia actually. the first is what is the alternative interpretation that doesn't apply here?

that would be an interpretation that doesn't put greenhouse gases within the definition at all the that would be really unthinkable or have worse consequences than worrying about the interpretation of this trigger provision. so either we have to do the one or the other. either we have to interpret the trigger provision with flexibility so that there are written exceptions, hundreds of exceptions in it one way or the other or we have to say you can't do that and therefore they don't apply to all. which is worse? >> i think that states it fairly. i think that states it fairly. >> depends on what you mean by unthinkable, general verrilli. what is supposed to be

unthinkable? that greenhouse gases should not be regulated? maybe that is unthinkable. but the issue is, is it unthinkable that congress did not intend to regulate greenhouse gases when it enacted the current provisions of the statute? >> but tnt -- isn't that the argument? justice scalia's alternative interpretation of the statute might have been reasonable before massachusetts but no longer is, isn't that right? >> here we had a stat tute that had very specific numbers and the agency said these numbers are absurd, we're going to multiply by 40. -- 400. in the entire lift of federal regulation what is the best example you can gib us of an agency doing something like that where it has taken a statute with numbers and crossed them

out. and written in the nubbeds it likes? >> obviously i wouldn't character rirse it exactly that way. i think morten against ruiz is like this in the sense that the agency had the obligation to provide something to a certain population and it didn't have the funds to -- available to provide it to the whole population and it made the judgments it made to try to get the program to work. >> what was that? >> morten against ruiz. if i give a hypothetical, if congress enacted a statute that says customs authorities, border authorities have the obligation to search every cargo container that comes into the united states but no container may be delayed more than three days, if the agency were faced with those obligations and didn't have the resources and said what we're going to do is search the containers that come from places we think the risk is most likely, i think everyone would think that that's a reasonable interpretation of the agency's charge under the statute and that's essentially what the agency has done here. >> just to be clear, you're not say, -- saying, or are you saying that if you are denied

the authority you seek here there can be no significant regulation of greenhouse gases under the act? you're not saying that? >> no. and i think i want to provide for specificy. in my answer if i could. the court has held in american electric power that the e.p.a. has the authority to provide general national standards. now, with respect to the p.s.d. program i want to, i do want to emphasize that there is a distinction between the question of what triggers your obligation to get a p.s.d. permit and what counts as any air pollutant that triggers it, versus a situation in which if you are already subject to a p.s.d. permit because you are already emitting a naaqs pollutant or one of the other pollutants, whether under 75 a 4 you have to

beat the best available technology control requirement -- >> that's the 83-86 question, right? >> that's correct, your lon. correct. i think those things are differ. >> so there are really three points. 74-11 and then triggering and then if you are already subject to the permit. the question about whether the p.s.d. program is limited entirely to pollutants that affect local ambient air quality, i just don't think that adds up at the end of the day. for one thing, e.p.a. has been regulating since 1978 something called ozone-depleting substances. those have no local effects. they are substances that are released, go up into the statosphere, eat up the ozone and that then creates additional ultraviolet rays which --

>> they have local effects. everybody knows -- that's smog in los angeles versus montana, right? >> certainly greenhouse gases have those kind of local effects because they raise the sea level which causes flooding in certain places and droughts in other places. >> whether have the sea levels risen other than please in >> well, certainly massachusetts. but e.p.a. has been regulating ozone-depleting sub stances since 1988. >> and congress aki he ised in that? i think in 1990 they raltfied it. one thing they did was specifically focus on ozone-depleting substance -- substances and they did not pull ozone-depleting substances out of the p.s.d. program and that's

significant because they did -- >> i thought there was a very short time lag between e.p.a.'s assertion of the authority to regulate ozone-depleting substances -- >> years. i don't know if it was a full two years but the congress focused specifically on exactly lou the ozone-depleting substances were going to be regulated. so i do think it's quite strong ratification argue -- argument and -- >> what's the -- i know where they're going to take this question. you are going to lose. >> i actually think that it's the judge cavanaugh approach and a.c.c. approach. >> there is a significant dwiffers -- difference between

them. >> there settlement >> which one? >> i have another thought on that subject. as i said earlier, the whole problem in terms of expanding the permitting requirement is co 2. and so if the court were to say that any air pollutant can't be interpreted in the way that e.p.a. has interpreted it at the trigger level to mean what we think it says, what massachusetts versus e.p.a. compelled and the court disagreed with that, seems to me that the answer that is least problematic from e.p.a.'s point of view, does the least -- causes the least risk of cleal -- collateral consequences with respect to establishing regulatory programs that go beyond p.s.d., if you say you can't -- would be to say you can't use c.o. 2 -- >> well, -- >> that's just a trigger,

justice ginsberg. just at the trigger. we think that given that that says in unambiguous terms, section 74-75 and a 4 that anybody subject to a permit hads got to loop back for each pollutant subject to regulation under the chapter, meaning the act, i just don't see how you can get under -- out from under that. >> you've got to follow the plain text of the statute there. it's 250 tons per year and you have changed that to 100,000 tons per year. >> i think you were going to get to 74-75 .3 a, b, c? >> 753 c does say if e.p.a. does set a greenhouse gases standard for a particular stationary

source like power plants, then that becomes a condition of the permit. so assuming e.p.a. acts under 74-11, those have to be in. there say question about the definition of the trigger. now, we don't agree with it but basically trying to answer your honor's question, that's what i think. >> you are leaving or suggesting out that -- the meaning that only the major facilities as defined now essentially would -- >> well, if you took co 2 out of there quation, i don't think the expanded scope of the permitting obligation is going to happen, because it's the co 2 emissions that expand the scope. >> just breyer said the difference between 83% and 86%, that 3% difference of who you

are covering is thousands and thousands of people, or entities, i should say. not people, is that going to be the same under the reading that you are proposing? >> pretty close. but i think reason that the expollution -- exclusion of co 2 seems to be to be the most problematic is e.p.a. has an -- an established framework that applies to sulfuric mist and other things e.p.a. regulates under the program and you wouldn't be redefining the triggers to exclude things you had previously included. that's the riffle shot the court thinks is a problem. >> if you are rejecting it, they're not going to say take our co 2 out. they're going to say there is a choice for e.p.a. to make. >> yes, certainly that's right but i think the argument that, as i read judge cavanaugh's

opinion and as i understand my friend's argue did -- argument on behalf of acc was that the statute essentially compelled the conclusion. and the problem with that way of thinking about it is that there are many other pollutants, not naaqs pollutants that e.p.a. has regulated for years and used as a trigger for years to require psd permits which would put you at risking excluding from the program if you were to adopt the judge cavanaugh -- >> i have to say in breading dunk reading the brief for the state and reading your brief i couldn't find a single precedent that strongly supports your position. brown and williamson is distinguishable i think for the

reasons set forth in the reply brief. what are the sources you want to cite to support your position? >> sustaining the argument that the trigger applies here, there are not a lot of cases, you are right. not a lot of situations aeyes. i think morgue -- morten comes closest >> that's not cited in your brief, was it? >> no. it's cited in the rule-making proceedings and rule-making opinions. so if i could, justices, just sum up here, the e.p.a. did what it did because the problem it's confronting is a problem that e.p.a. considers to be urgent. >> i don't want to interrupt your summation but this quick question, on the issue of what happens to a facility that is subject to the p.s.d. program

because of the emission of other pollutants, the petitioners argued that the permitting process would be entirely different for greenhouse gases because it would make no sense of to require monitoring of local air conditions, it would make no sense to try to assess the effect of the he willition be greenhouse gases on the area in the region. could you just give a quick response to that? >> that's actually quite important. that's just not right. if you think about it, there are multiple pollutants that are currently regulated under the p.s.d. program. some of them have national air quality standards and the local testing makes sense for those. others don't have national ambient air quality standards, like sulfuric acid mist and others. there aren't standards for those. the way e.p.a. has handled that is look at the regulation, the regulations where there is a substantial amount of monitoring

required. but others for which there is no standard, they just exempt from the monitoring requirement. what the states do in their permitting processes with respect to the analysis requirement for the non-naaqs substances, for example, sulfuric mist, is to apply a very simple idea. you are not trying to make sure that the emigs are consistent with the overall air quality level. it's a very simple calculus. more is worse, less is better the so with respect to things like sulfuric acid mist and ozone-depleting substanced, that is how it has always worked at the state level of the program. you look at what the levels of emissions are and try to get them down. so we're not treating greenhouse gases any different than sulfuric mist or any of the other substances that don't have local requirements. i would just remind the justices about the e.m.c. homer city case a few months ago the it's not unusual that the e.p.a.

would be regulating substances in one place that pose effects hundreds or even thousands of miles away. that's what that case is all about and so, and you regulate those pollutants also through the p.s.d. program. so you don't, you aren't, in that situation, looking just to see what happens in the local area the it's just never been the nature of this program. it just doesn't work that way. if i could jut remind the court in conclusion why e.p.a. did what it did is because this is an urgent problem. every year that passes, that problem gets worse and the threat to future generations gets worse. i think faced with the options e.p.a. had it made the most reasonable conclusion it could. thank you.

>> you've got five extra minutes, to be fair. >> telling me i could have done my summation? >> you had already gotten going! you don't think greenhouse gases should be regulated at the 250 tons per year level, right? you said congress did not intend that and it would be absurd. >> yes. >> so what level do you think they should be regulating at? what intelligible principle are you taking from the statute to say 100 now or 50 -- if you had all the resources you need, what level would you pick as the proper one? >> i think you would want to look at the definition of what it means to emit 250 tons per year and then think about the underlying notion that what congress was trying to do is impose these obligations on facilities that are capable of

responding to them there -- that are going to continue to be major in quality and those are going to guide you in terms of what the number is. >> not sure i understand. would you pick the number that leads to the same class of emitters? >> i'm sorry, justice kagan. the same class of emitters as? >> the more typical context. 100, 200. are you essentially looking for the number that captures the same class of emitters? >> i don't know that it will be the same, but i think the number, the class will be a lot smaller than the class under e.p.a.'s current understanding of what it means to emit 250 tons a year. >> how did the e.p.a. fix on the number? >> they tried to explain that in one of the rule-making orders. they tried to figure out the right balance point where they

were accomplishing very significant emissions limitations while not sweeping in sources that were, that -- the very large number of small sources that would only make an incremental difference. what e.p.a. did essentially was say we can get to 85% of the emissions we're trying to get to by setting the standards where we've set them. >> well, two things. one is you haven't said anything about the title 5 problem which is a 6.1 million persons or individuals, businesses coming into it, so how do you get them out of that one? >> i think you streamline. same idea. >> why? and there would be a good reason for this, but the bell that it rang is that agencies have tremendous authority about how

they distribute their enforcement resources. they don't have to enforce everything against everything and that says basic principle. they have to put their money where it will do the most good. no one is really arguing that here but -- >> because of the citizen suit provision in the law. that's what they will tell you on the bottom line. that's the reason why because it's subject to a citizen suit whether we exercise -- >> in other words, you would be out of it totally and any citizen could go bring a suit and say where's your permit? >> right. >> no further questions? >> thank you, general. mr. keisler, five minutes? >> you asked what this would involve in that kind of situation and i think your honor gave a perhaps absurd hypothetical about light bulbs. you should know that the permitting authority does

address light bulbs in the cafeteria. it says that permitting authorities likely do not need to look at whether more efficient light bulbs should be used in a facility because it likely would not have sufficient payoff. but the fact that they are talking about it brings into sharp relief the fact that when talking about this permitting propose -- process is potential invasive in every ats pec of a local plant's operation and that's what is so different between this and the nsps program which functions by -- >> we went to the examples in the brief. the 144 permits that have already been given.

people who have managed to come into compliance under that. >> oh, it's certainly not our submission that every single one of these determinations is going to be unreasonable or outrageous or reach into the cafeteria but the scope of this is so different in nature and kind, a massive program that bo set up standards that certain people would not be able to meet. and the second point is there is a selectivity about what the agency considers ambiguous and unambiguous. any air pollutant is ambiguous enough to accommodate any regulated air pollutant but 150 to 250 tons a year is really ambiguous. i mention this because the selectiveness with which the e.p.a. has turned the ambiguity on and off so that in combination it maximizes the agency's discretion, we talk about what does the least

violence to the statute, we have to think about it in other ways along with the separation of power. what the e.p.a. has done here is al locate an exceptional degree and troubling degree of latitude to design its own program. and there is another way to think about the interpretive exercise leer and that is brown and williamson the brown and williamson started with the assumption that the definitions in the statute encompass nicotine in cigarettes but then went on to say that giving the fda jurisdiction over those programs would be inconsistent with the regulation that congress enacted. they didn't go back and say we have to figure out which word in that definition means something different than we originally assumed.

no further questions. >> thank you, counsel. the case is submitted. \[captioning performed by national captioning institute] \[captions copyright national cable satellite corp. 2014] security state john kerry will be traveling to the gradient k on tuesday. urged on support for ukrainian sovereignty and the ukrainian people having the right to terminate her own future -- determine their own future. some live coverage to tell you about tomorrow on the c-span networks. on c-span two we will be live from the brookings institution for a discussion with mac thornberry and representative larson. they will be talking but u.s. offense policy at 10:30 a.m. eastern.

later in the day, county officials from around the country will gather for their annual legislative offices in washington dc. some of the features speakers will include housing secretary shaun donovan, a former utah governor, and west virginia senator. that will be live at 1:30 p.m. eastern. coming up next, newsmakers, with the chronic senator, -- with democratic senator tom harkin from iowa. then, an event looking at u.s. intelligence capabilities and challenges. >>? we are joined by tom harkin. welcome. we are joined by tom harkin. welcome. thank you for being here. two reporters to help us with questions.

lisa mascaro who covers the tribune newspapers and fawn johnson, a correspondent with "national journal." >> let's start with the minimum wage increase. this is a big deal for the democrats. expected to be a big deal in the campaign. right from the beginning, you have drawn a hard-line, thank you do not want to negotiate the rate that you have proposed over three years, $10.10 per hour. can you tell us why? >> it is not just a big deal for democrats. it is a big deal for millions of people. 80% of the people we are talking about that will get a raise our adults. 54% are parents of kids. over half of them bring at least half the family income.