case, the subsidies -- which make insurance affordable for now about 8 million people who have signed up for coverage -- would cease to exist. but that is just up one. the subsidies would go away. the affordable care act also has a provision in it that if you fall below a certain level, if insurance still is not affordable even with the subsidy, there is no if you take away the subsidy you suddenly have an additional perhaps 6-8,000,000 people who suddenly have unaffordable insurance and they drop out of the market entirely. insurance companies meanwhile have assigned risk pool's based on new customers. they have projected rates waste on the customers -- based on the customers.

suddenly, their rates would skyrocket. you would have a domino effect. everyone else in the individual market in that stage would suddenly be jeopardized. some private insurance companies would see their portfolios in grave jeopardy, pretty quickly. i would say, having been there for not only all the debate and testimony, all the hearings, that led the implementations there was never a conversation suggesting testimony amendments, during the passage of the bill or certainly any regulation that we ever wrote, any conversation i had with my former colleagues, governors around the country that said, oh by the way, if you don't set up your own exchange, your citizens won't have coverage. i think it is a -- it is

difficult to read what is a national framework national law, national coverage and say that this was the intent but that is what the plans adjusts. >> 34 states have not established their own exchanges or operate their own. if the supreme court ruled that this funding mechanism was not constitutional, doesn't that put extraordinary pressure on the governors of that state, most of whom are republican? what would be the reaction? how would washington come together or not to solve the problems. ? eric cantor: maybe that would be the last court case, if the court comes down the side of -- against the proponents of the law, we will see if the

administration will come together and work with republicans on the hill or if not, are they going to go and try to work with the governors in the legislatures of those states. they will have to then, i assume, comply with the holding by the court which would say that they have to establish an exchange. it could put pressure there is well. but you know, if you take stuff out, and we had this medicaid decision as the secretary points out that was not consistent with what the president and administration wanted to happen, you have seen a lot of states like virginia not expand medicaid. if you look at the numbers i think, if i'm correct, half of the participants are under aca and are medicaid participants. it is very difficult for providers to stay in business at

medicare reimbursement rates. it needs to be some realization there that that is not a sustainable situation either. if the court comes down and says , and i think what you will see is a real unraveling of this law, the way the secretary said, if there is no longer affordable -- and affordable insurance plan, and insurance companies are going to face a daunting circumstance. i said earlier, the republicans are not going to support a mandate. the secretary talked to that if you're going to have a mandate maybe that is why you need a mandate. that is where the republicans are not coming from. there not saying you need to go and established bands of ratings.

kathleen sebelius if you get rid of pre-existing conditions, you need a mandate. eric cantor: the construct of the law right now is that there is a severe inflation in cost because of the mandate is benefits that washington has decided needs to be in the plans. the secretary says that on top of that, it increases costs. you have washington mandating. it have to work on that. i hope he can get to the kinds of things that are trending in the health care market. cms recently came out and said that we want quality based payments, bundled payments. those are the kind of things that i think everyone is for. the recently passed fix went in that direction. >> a rare but hopeful example of

a bipartisan deal, they did a fix that fixed the medicare rates and they changed the way that health care is provided in a meaningful way in terms of reimbursements. kathleen sebelius the sdr is about dr. paydoctor pay. the senate has not passed it. we hope that they will pass it when a they come back. it contains a lot of elements that comes directly out of the affordable care act. they moved to a value-based payment, picking up accelerated issues that cms has put on the table. this is the framework the law jumpstarted in 2010. it has very much been under way. there are a lot of people -- a

lot of the attention, 90% of the attention of the press, has been around the marketplace or medicare expansion. and that is the slice of the market. it is like watching synchronized swimming and only paying attention to the bathing caps. there is a lot of things going on under the water. how providers are reimbursed, for the first time having electronic records, a bill prior to the affordable care act. it is part of the affordable care act. could you imagine a $3 trillion industry that was exchanging most information on paper files? they could not tell was going on. that has dramatically changed. there is an unlocking, i would say of innovation and ingenuity and private sector technology coming to jumpstart issues

around deficiencies in health care and better care and better patient care that we have never seen before. the framework was really this administration's passage of the affordable care act, which said for the first time that the centers for medicare and medicaid, which spend $1 trillion a year, a third of the spending, is out of the public sector plan, finally said we are going to use the public sector leverage to align outcomes with what is going on. it said to cms, and this is in the law if there are particles found to lower costs and improve quality, you can take them to scale through administration. you do not have to run a demo project, evaluated.

it is now in the law. that is a huge change. private employers and others are thrilled because they have been trying to do this for a long time but medicare was a big stick in the marketplace and was stuck. as recently as 2011, 0% of medicare payments, 585 alien dollars, give or take a billion dollars, 0% were in any value based payments. it is going to go to 40%. that is an enormous change in the way financial incentives can align with outcomes. steve mcmahon: you are in the private sector. investments made in the health care space what is most

exciting thing you are seeing out there when you look to the future? what is happening with efficiencies and improved outcomes as a result of the things the secretary just mentioned? eric cantor: we have a fairly robust health care practice and what we are seeing is that there is lot of attention on providers , you're seeing a lot of private equity interest in coming to the space. you're also seeing big players looking at -- and there are a lot of press reports about big acquisitions and mergers -- -- the move towards quality-based payment systems, payment systems that are outcome based with a different providers surrounding a patient's care are now all assuming a piece of the risk.

it is not just the fee for service. it is really making sense. i read this article in the "york new york times" about a company that just started, a primary care company, and they get a payment per patient. that is all they get. they have to figure out how to best produce an outcome. there is no coding. you don't have the providers sitting there trying to figure out what procedure etc., and they give an example of one of these private care providers and they have health coaches that helped the physicians and they figured out there is a woman who had diabetes and was an abunable take her pills. if that was not caught, she would've gone into the hospital and created more expenses.

it is common sense injected in the new model. you are seeing -- the incredible piece of our health care system, it is i think, the inpatient. some say that that also contributes to the costs. if you look back, we are different in this country. we're different about how we treat the start of life, natal care, what counts as a life ve birth. we value life at the end of the spectrum as well, which can cause some contentiousness in the debate. but i believe that it's a good thing. we value life. we are the leaders in innovation and the first to adapt are the first to pass.

if you look at the incredible amount of capital going into biotech and all of the new types of medicines that are out there that are tailored to the disease and the person. it is just phenomenal. when i started, we were always focused on things that the government plays a proper role in funding basic research because there can be such leverage, not only from saving lives, helping cure diseases but ultimately it helps the budget. a feature the disease, you're not going to -- if you cure a disease, you're not going to have an outbreak. private capital flowing into some of what has been created because of nih. steve mcmahon: when he think about innovations and medicine personalized to the individual and disease, it sounds expensive.

my question is, how are the providers going to pay? it seems like the pharmaceutical industry which is bringing a lot of these two market is fighting with the insurance industry. how is that going to sort itself out over time? kathleen sebelius: we have a different system in this country than anybody in terms of drug pricing. we, in the united states, medicare is prohibited by law from negotiating for drug prices. medicaid can, governors could, i could negotiate and said a formulary -- set a formulary. the fda appropriately, are not allowed to consider costs when approving a drug. you never want to say, this is brilliant but we are not going to put it on the market because

it is going to cost too much money. but there is really no other country that puts caps on drug pricing and ceilings. in lots of places around the world, you can buy drugs that are invented here in the united states and discovered here in the united states and sold here in the united states for 30% or 40% more than they are sold to people. there will likely be a conversation and we will not solve this tonight steve about whether america should fund r&d for the entire pharma industry for the future and what kind of burden that puts on our health consumers that is not there elsewhere. there is no question that -- i'm watching the human genome and mapping dna has lent itself to incredible possibilities. i think the latest data, if i

get this wrong pretend you do not hear this, peggy the fda has 60 or more drugs they consider breakthrough drugs and about 80% are in the targeted therapy region. and that is just starting to explode. there is a cost factor but there is also a huge benefit factor. one issue that is not really in the drug area or innovation area that i think is a focus, and a growing focus, is back to part of the delivery system issues are finally paying doctors to keep people healthy in the first place. if you think about fee-for-service, the way a lot of -- if you're patient stayed out of the hospital, you are often not as luc lucrative

philly rewarded as if your patients were in the hospital -- lucrative ly rewarded as if your patients were in the hospital. if have provider has a patient i diabetic, and can through earlier intervention, wraparound care follow-up prevent the next hospitalization they now will get a share of that savings. i think that is an incentive that not only leads to better care but also more appropriate interventions. people are watching the pathway that particularly chronically ill patients have and how many times how many emergency room visits there are. some cannot be avoided, but

enough of them can with follow-up care and somebody looking out for them. i think that is all a part of the strategy. the other part of it is looking at smoking and obesity, the two underlying causes of most chronic diseases and really doubling down on going after smoking again helping people. here's a great factoid you can use in your next trivia contest. medicare, five years ago, would pay for a medicare beneficiary to get smoking cessation treatments once they were identified with lung cancer, but not before. ok? make a lot of sense? pay for a diabetic to have an and b amputation, but not necessarily the benefits it took to intervene more dramatically,

more quickly, wraparound care that might have prevented that. some of the way that we pay really does create a different way to practice. measuring and looking at what is happening across the system, why 10 times as many tests are being done in this case as opposed to this case, what the outcomes look like, how people can be kept healthier for longer periods of time, i think it is just beginning to happen. it is an interface, finally, of technology and health care in a way that i think can lead to a lot better care. steve mcmahon: the incentives, and that is what sectors talk about, the incentives, you're talking about prevented care and wellness. this is part of the aca that came out and has allowed for some of these incentives by

private employers to put in place for their beneficiaries to reap some of the rewards for their healthy behavior. it is also relative to the individual. the problem is, he had the long arm of government coming end and -- you have the long arm of government coming in. we have got to be careful now. i am all for incentives, they make a huge difference. it is risk allocation, where is the incentive to share in some of the gain if you have taken the risk. we have got to be careful all the time when we say, we can fix this from the government standpoint. let's just do this. the nec see once again, the government comes back and says that is not what it needs to be. this goes back to the larger picture. if the supreme court case come

down against obama care, you're going to have -- on both sides, you're going to have to step up. sensitivity on the republican side is going to be we have got to roll back the sense that we can fix all the problems here, but instead, why don't we create a platform and environment for the private sector to do that which we believe could lead to healthier lives and to less costly health care. kathleen sebelius: if the supreme court rules against the plan are you optimistic the republican majority will step up and look at ways that the act can move forward and fix what needs to be fixed and not look for the 57th time to repeal? just curious. eric cantor: what -- you know --

the tough parts of that law have not yet been implemented and there is a lot of discussion around the cadillac tax. there is a lot of labor unions very much opposed. we have an election that is coming in, november 16, and these kinds of questions are going to be a real test for the next president and his or her administration. because, are you going to suggest subject all to the mandate implement the tax that is coming? these are not questions just for republicans. if the law stands as that is it is a question for both parties. i would say this, having been and served in republican leadership for six years, one of the things i want to stress most its risk and reward it in the senate matter.

the prescription drug arena, the pharma the biotech arena, there is nothing more valuable, i believe, long-term than two guard our resources, to create incentives for the private sector to continue to risk capital to create life-saving drugs we have become accustomed to in this country. you're right, other countries are living off us. i don't know what the answer is. if we say, we're not going to do it unless you do it, we are all going to be out of luck. i always oppose the government coming in and saying i am going to, as medicare negotiator, and a pricing. then he begin to play with the risk-reward the country is based on and your snuff out some of the life-saving drugs we have seen. it is part of the debate on the

fiscal and as we dealt with the sequester and the trade-offs. i believe we have got to be very mindful. i hope we did not get there with the government does not end up dictating what the prices are. steve mcmahon: that is it. we are out of time. we have a few minutes for questions from the audience, if i'm not mistaken. mr. mcintyre? five minutes. if you have a question, stand up and state your name and your affiliation. debra: i am from bethesda, a 27 year alum of nyu. two questions.

we have an incredible administrative burden in the health care system. i work in the pharmaceutical company and access to getting drugs by putting hurdles of authorization gets in the way of patient care. i'm a pharmacist and care about patients. one of the other administrative ordinance is within the government itself. it is the largest pair of health care but there are so many systems. veterans administration, active military and their beneficiaries, medicare, medicaid. how come we have not gotten harmonization there? why haven't we streamlined what the federal government is paying for all of these beneficiaries? i'm sure represented at canter, you can appreciate that. steve mcmahon: anybody want to take the first shot? kathleen sebelius: there is

conversation, i would say in my time there. certainly a lot of dialogue, particularly with the v.a. system and hhs. but medicaid is run mostly by the states. medicare is the big federal program. within the military, active military have a different system than the v.a. has, it is not systems as you say. -- it is multiple systems as you say. there is talk about eventually getting to the point where once you are electronic records that can talk to each other and look across systems in ways there can be greater opportunities to leverage contracting abilities.

but you are right, right now it is very separate. the system that most americans are in, the private insurance system, is a world unto itself. it is 50 plans in one company in one state. we still -- one of the reasons i think we are higher per capita than basically anybody else on the face of the earth is that we do have a much higher administrative burden. some of that is private insurance, but government or grams, i can't speak for the pa or defense department, the medicare runs on 2% overall cost which is pretty good for 53 and a half million beneficiaries. i wish it get private insurers to lower their costs in that ballpark as well. eric cantor: if the government is going to sit there and

attempt to say this is just for everybody, why does in a do it for itself? i think you are right about all the different arms of the federal government should think about making it easier for providers. maybe there's an opportunity for two sides to come to the other on that. you talked about the low administrative costs. they're probably needs to be more discussion on that. i don't believe there are a lot of folks in this town who do believe the government can actually function cheaper or more effectively than the private sector. you through that out there. it should be a point of discussion. we had a big discussion on the democratic side of the aisle during the aca discussion. there was a government offshoot, if you remember, where there was a lot of discussion and support from the democratic side of the aisle, a majority in the house

and senate at the time that they wanted the government a competitor with the private sector and be a regulator. the argument given that the time was, we need to government -- we need the government there to keep the private sector honest because we can't have the profit that is being made in the private sector. that was the argument being made in. my reaction and we see the government can operate at 2% and why is it the private sector is not doing so and what is the outcome? i think it needs to be a lot more discussion. eric cantor: i know we are kathleen sebelius: medicaid started as a private competitor to medicare. the theory was that it could run better. it created the possibility for it to be targeted that was 90%

fee-for-service. other times the administration came in, medicare advantage was at a hundred and 13% of fee for service with no health benefits that were measurable. part of what the aca did was bring that back down. just that one snapshot, where the private sector was competing, supposedly going to run -- eric cantor: it is apple to apples. kathleen sebelius: no, it was medicare to medicare. it started at 90% and went to 113%. kathleen sebelius: that is why theeric cantor: that is why the discussion needs to be much longer. steve mcmahon: another question? audience member: i had a

question about -- we are getting into implementation and it seems like we are -- we have no patience to the way we are reacting to aca. it should be 10-20 years before we see real results. we are starting to see some of policy takes a lot of time, it seems like area did how long do you think it should take for that aca to really show it's true self? 2025, 2026, what do you think? the second question is about consolidation? heady feel about things we're seeing with a lot of hospital being consolidated? elderlydo you think that is a reaction of the aca or something that was there before? if you think it is a problem for the patient?

kathleen sebelius: i would do a quick answer to the first. this is a major framework, assuming supreme court cases are survived, that's will evolve over time. were looking at the 50th anniversary this year of medicare and medicaid, which looks very different now. it has evolved and been updated. hope this sets a new chapter new framework can do just the same. the early results are pretty impressive with millions of people with coverage, but also reforms and costs. five years into aca, all the issues are trending in a positive way. we will see. but i think this will evolve over time. eric cantor: i'm not sure i follow the question with the facility fees question in there. i would elaborate on that -- ask

you to elaborate on that. audience member: there are patients who are concerned to go to the hospital a lot and get attacked on fee and they had not received it before. i was wondering if it was caused by the aca not caused but something that is possibly to do . eric cantor: i don't think it is the aca. i'm not familiar with what you are referring to. i would say the consolidation, i believe, is the result of a movement towards the more bundled payment structure. as we said before, it is basically like all parties are in this together. you have the patient, the insurance company, the hospital, the doctors specialists, and whatever providers involved all invested in the outcome of the

patient. if the outcome could be achieved at a lower price, then everyone gets to participate in some of that savings. to me, that is -- it is a question of a different risk allocation which more parties undertaking the risk, then you care. if you are a physician company , insurance company. that is what is driving some of the interests in consolidation. steve mcmahon: thank you very much, madam secretary, mr. leader. thank you to all for coming and thank you to nyu for hosting us. [applause] we have an exciting panel planned in 10 minutes and we

will have a 10 minute break. >> at the same event, supporters and opponents of the health care law discussed the state of u.s. health care. they also talked about what would happen if the supreme court rules against the obama administration in the king v. burwell case. this is just under an hour. > welcome back to part two of the form at nyu. happy public health week, which started yesterday. the first part of our evening was very illuminating.

we heard about access, cost, equity outcomes. at the we are going to hear a bit more around that as we move now into our panel discussion. a roundtable will provide their perspectives on what lies ahead for us as a nation in terms of health care and what it means for public health in the united states. as leader cantor advised us, can we look at how we might leverage the innovations of the american health system but also as secretary civilian -- as the secretary said look beneath. we have a wonderful panel.

first, i would like to welcome dr. allma adams, the 100th woman elected to the u.s. house of representatives. she has clear establish yourself as the champion for the middle class and for affordable, available health care for all. she wears many hats, as you can see, literally and figuratively. she came to congress as an artist, educator and public servant. next we have marylin langowski. she has worked in both the public, nonprofit, and private sectors. from academia, it is an honor to have dr. sherry glied.

she participated in the clinton health care process. we are privileged to have michael tanner, senior fellow and author of leviathan on the right. mike works closely with his colleague who directs -- i'm currently serving as the u.s. department of health task force.

i would like to open of the conversation to our four panelists first. then we can open it up to some questions amongst ourselves and to the audience. cannot, you will have the chance in the actual and virtual audiences to have a chance to bring in questions. that may begin by may be a something to start off with. despite spending more than any other nation, as the secretary said 2.5 times more per capita than any other country, the u.s. performs poorly in terms of key health care outcomes. perhaps we can speak a little bit on what your vision is about how we can maximize the health of the population of the united states and how will the aca either contribute to or stress -- or distract from that vision. rep. alma adams: thank you very much and let me say what a

pleasure it is to be here. it has been three years and say retired from 40 years of teaching at bennett college in north carolina. it is awfully good to be back on a campus and have so many students in the audience. i think this is the appropriate place to have this kind of dialogue. i see so many of my friends who i work with at the legacy foundation. my background is not in health care but i come to this process as someone who has served in elected office and as an educator. i can tell you, in both of those instances, for me it has been about listening and learning and one of the things i do know as a result of having interacted throughout my career, is that people absolutely need affordable quality health care. that is why i have been a

champion of the affordable health care act because for many people, especially in the district i represent, one of the poorest in north carolina, one that has high unemployment rates , that this is a godsend for a lot of people thousands of people, as a matter of fact, who have never had coverage, never had an opportunity to go to a dock thtor. bedard of care is going to be the key to help us to do for our population -- preventative care is going to be the key to help us do what we need to do for our population. this is something very dear to me. i grew up with a mother who is now 89 years old. in a month she will be 90 years old. i did not know i did not have health care.

i had a sister who was very ill with sickle cell anemia and we got her health care from the emergency room. a lot of people like my family even today, do not have the opportunity to see a doctor who really need to see doctor. it will help in the long run to make sure that we have a society that is healthier and they are not seeing extraordinary costs on the backend because we had not done what we to do on the front end. ann kurth: thank you for that. mary? mary langowski: this is an exciting time to be involved in health care. at cvs health, we are in an interesting position of being an enormous organization with a lot of scale and reach and the ability to widely sell

high-quality programs across our entire company but at the same time, write people's backyard -- right in people's backyards. how did we help people on the path to better health? humor work hard to help our clients and hospital partners. part of my role at the organization is focused on our enterprise strategy. as the person doing that, it is my responsibility to really understand what people are investing in in the marketplace. i spend a lot of time with really interesting innovative organizations, who are really working day in and day out to solve problems in the health care system. with regards to -- the growth of what heyou think about aca, it is an action forcing

event. a lot of positive energy around solving a lot of health care problems we have today. we are really focused on how we look at those types of innovations and build on them. who should we be partnering with? how do we help consumers on the path to better health? have pharmacists all over the country, minute clinics with nurses all around the country. there are times when we are seeing patients, on average, potentially nine times a month as compared to a couple of times a year the physician might see that patient. we are interesting and partnering with the traditional health care system and complementing that health care

system enables us to think about how do differently the notion of health care has expanded dramatically. the players in health care have expanded to medically. we no longer think of health care as physicians in hospitals. we now think of whole foods is having a role in health care and under armour having a role in health care. there a tremendous amount going on. it remains to be seen how all of this comes together. it is extraordinarily promising to think through how we can really engage patients who are and help them earlier in their journey to keep them healthy and focus on things like prevention. michael d. tanner: there are

several things he was health care system does very well. the first is in terms of innovation. we drive most of innovation around the world. wasn't half of all pharmaceutical patents are in the u.s.. transplants, mris, they started first in the u.s. we are the engine for innovation that spreads around the world. our outcomes are pretty good. you can measure things like life expectancy. things that murders, suicides accidents affect life expectancy but if you subtract the amount, we moved to the head of the class. if health care systems of the termin--are the determination had you account for nevada and utah having a three-year

different lifestyle expectancy? you have to be careful. if you look at survivability rates for cancer or pneumonia or aids we are much better than most of the world. when someone gets sick and they can afford it, people come to the united states for treatment. he continues to be were people from around the world come. hundreds of thousands around the world come to united dates for treatment. we have problems. we spend more money. wise health care different than other goods and services? it was not so long ago when a computer was the size of a house and cost a half million dollars and it wasn't a good computer.

today, i have a much better computer in my cell phone. i got it for free with my two-year contract. why? it wasn't because the government set up a giant affordable computer plan. it was because millions of consumers demanded better quality at a lower price and you had multiple providers competing for the consumer dollars by offering greater innovation. those things don't exist largely in the health care system today. we have a third-party payment system. consumers are spending someone else's money and not have demands for better quality and prices. we have cartels that prevent competition. the affordable care act, i am afraid, goes in the wrong direction. it narrows it, putting the government rather than

insurance company, in charge of making decisions. essentially, you're getting the consumer out of the equation. sherry glied: i usually start my talk by saying that no one believes u.s. system is the best in the world anymore and tonight i have been proved wrong. i want to answer ann's question. we're five years past the aca. it has been a phenomenal success. 14 million people have gained insurance coverage. that is more -- this is a big deal. when you look at what is happening to them,

substantially, 10 million in one survey, people report they are longer in financial distress because of health care costs and they have greater access and they are not delaying care. these are exactly the things the law was intended to do. there's evidence there is already an effect on health care outcomes. i don't want to overstate it because it is just the beginning of the survey, but psychological distress has declined in the population and that is a really interesting one because we have randomized controlled experiments that show that when you give people health insurance, they become less depressed. an astonishing finding. you can get treatment for what is wrong with you and that does good for your mental state. that comes her randomized trial -- from a randomized trial. in terms of outcomes, we are

doing much better. as the secretary and others have talked about, there is enormous health care delivery reform. there is growing competition new insurance carriers. a lot of dynamism in the market. and, most important, the cost of the law has come in 25% below projection. it is basically an incredibly successful effort so far. what can we do to make it better? the number one thing to do to make it better is wait and not do anything. i don't know how many of you have read the book, but do you remember "the little prince?'it starts with the python eating an elephant.

if you think about the u.s. economy and society and the aca, the aca was the elephant. we don't know what is going to go wrong. we don't know what needs to be fixed. we are not going to know it until the python finishes digesting. we need to be patient and figure things out slowly. we need to do watchful waiting. we use that term to treat some diseases. it means looking at what is going on and monitoring it carefully. there are a lot of anecdotes about good and bad things. we need to figure out if the anecdotes are temporary and are going to figure themselves out or if they are permits. does it affect a few people or does it matter at the population level? you can hear the academic in me talking. it is going to take time for us to figure out what we are going to do next.

the number one most important thing for us to do is be patient. ann kurth: we've heard the power of prevention, engaging the consumers, the power of the marketplace. a chance to take the long view. that said, i want to talk more about the king v. burwell ase. as many as 8 million may lose insurance and costs may increase. according to the kaiser family foundation pulling, most americans expect a negative outcome from an adverse ruling on this and twos. in light of these findings, which you think are the consequences of the supreme court ruling in the short term which prohibits subsidies in exchanges. rep. alma adams: i can tell you

that 450,000 people in north carolina the advantage -- took advantage and went out to the marketplace. we are one of those states which did not choose to put our own in place, nor did be expand medicaid. we might talk about that later. it would be devastating. we're talking about folk who now -- hundreds of thousands of people -- who now have been enjoying health care, many for the first time. to have it taken away. more than that, i think we're talking about people who were probably not able to afford it. it means it's gone and it will not come back for them. i think in our state in particular, estate which has

very high unemployment, high poverty, we needed the opportunity, our citizens needed the opportunity to get the subsidy. they needed that. they could not afford it without it. at this point, i would hope that the decision that comes down will not be one that will impact -- it will not just been of carolina, it will be felt nationally -- it will not just be north carolina, it will be felt nationally. in my restrict, hundreds of people do not have health insurance and large majority our children. if we say we are a society concerned about our future, our future lives with our children.

it was in 1966 that martin luther king in the d -- in addressing a group of health officials said that inequality in health care is the most inhumane and shocking. indeed, it is. if a tremendously impact our community and state in a very negative way. i certainly would not like to see that. if it is going to drive up the costs locally, for your stage, for your counties, you're going to have folks who have to do and are still doing it today, not having doctors to go to because they cannot afford it so they are going to hospitals and emergency room's, driving up costs there. i think it would be a terrible thing to have the ruling goes the other go the other way.

we should think about the constitution which says we should be concerned about people and their lives and making sure that all of us are treated equally in this perfect union as we call it. i'm very concerned, especially as someone who represents people in particularly a state that has done a lot of awful things. i can tell you that when we decided not to expand medicaid, as they did against that. -- ivo to against that. there is a tremendous need out there. i hope you consider the people and be very sensitive at the of the needs. michael d. tanner: i do actually

believe there would be a great deal of disruption if the court rules against the subsidies, which is something that the obama administration should have thought about before they unilaterally we wrote the law -- re-wrote the law;. . the administration was 121 told to one people that they might lose their e insurance. if struck down there were no longer be an employer mandate in place. many small businesses would no longer be shifting people to part-time work to avoid the mandate, for example, or be hiring in places that they are hiring today. it would increase jobs and economic growth. there would be lower taxes which would help the economy a great deal.

finally, the final run of this is that congress will pass something to fix the problem. there are many proposals floating around congress for alternatives. this would force them to choose a particular one. the big question about that would be if the administration would be willing to compromise and agree with congress on some sort of an alternative approach, or if they are going to dig in their heels on this as they have on so many other things. mary langowski: there are countless organizations health care and otherwise, who have spent millions and millions of dollars trying to comply with the law and even build businesses around was folks view as a sort of playing field they were on.

this would certainly be disruptive for consumers but also disruptive for a lot of organizations genuinely trying to innovate. it is extremelywhether it is resolved through the court or through congress to do something to ensure the stability in the marketplace to organizations continue to plug along and build solutions and innovations with an understanding of where things are heading. >> i guess i should put in my two cents. there is an old psychology experiment in which you give people -- you show them a cup and say how much would you pay

for this? they say two dollars. you ask them how much would it take for me to take that cup away from you. to take the cup away would cost more than two dollars. there may be people who do not like the affordable care act when it passes but taking it away afterwards is a different proposition. moreover there were some identifiable losers. the people who are identifiable with the all losers. the winners are not going to know who they are. if this happens there will be a told.

alma: i have been in politics for a long time. 30 years. yes i think the public wants to do something. if they want something done. that doesn't mean that something is going to get done. it is the most divided place i have ever been in. you go in separate doors if you are a democrat. it is just crazy. i think we would the public. they are not all democrats. some of them have no affiliation at all.

there are people who need health insurance. if and we need to think about that. i don't want to put my bag on my colleagues fixing this. i want the public to be realistic in thinking about it. it was 34 to 37. the folks in need to take those governors to task and those legislators. and hold them accountable. you are right, it is going to be more destructive to now take it away from people didn't -- from

people. they are going to end up in our emergency rooms and other places. i don't think congress is going to be -- they should fix it but the question is will they? i am not convinced that is going to happen. >> i want to return to one of your points about medicaid expansion. there were early identification and state that did not count the programs. some states have laws prohibiting medicaid expansion without legislative approval. the governor of north carolina sign legislation preventing any agency of that state. also in georgia and tennessee. what do we see as the consequences of this for access to care?

alma: in north carolina there are 350,000 people who did not qualify. i was at the legislature at the time. i do think that was a bad position on part of the governor. there has been talk about taking another look. indicating some work on this. we shouldn't be mean-spirited. we have so many people who didn't qualify. some veterans fall into that category as well. if we had expanded medicaid there would be an additional

400,000 people in our state who would be eligible and who would have insurance today. not just north carolina but the other state and it is going to magnify. those numbers are going to get excessively large. ann: this fund has been undermined with substantial cuts and redirection of funds away from the purpose of public health. what is the solution some of you propose to that? sherry: congress needs to fund it more. michael: i think will a percent of the fund was used for clinical expansion. sherry: streetlights could be

the best possible way to use it. i wouldn't want to put the money into clinical prevention. there are many ways it could be used. if it is for people to exercise than it is a great way to do it. michael: i think of streetlights on the cdc campus. mary: i will take a crack at this. he is one of the few people who talked about prevention many years before it was cool to talk about prevention. no one was talking about prevention. for decades he believed in a more expansive view of what health care is. this fund is part of the

manifestation of his desire to bring attention to the issue. him -- i won't speak -- it is one of several things he did during his distinguished career to try to bring focus to prevention and public health. before this panel started there was all this interesting stuff going out there with the notion of public health reserved and off to the side of government function. it's hard to put your hands on and figure out what is it and how do we measure it. there is a lot of investment going on in these areas. as many of you know we decided

as of a year ago we should quit cigarettes for good. i think for us it was really exciting. obviously an exciting step for us. also a really neat public health step. it is starting to collapse those things. we work together in siloed ok's. figure out how to measure prevention better. we were proud of that move.

michael: i think it is often overstated here. i'm in favor of preventative care. we should be focusing more on it. mostly because it makes people healthier, not because it saves money. the overall evidence in the academic literature is largely because of the shotgun type of approach. diabetes is a very good example. if you can prevent people from getting diabetes think of how much money you saved. if you have 20 people and two of them were going to get diabetes, that means you are going to treat 18 people who were never going to get it in the first place. essentially taking the money you saved from the one person prevented from getting diabetes the literature suggests you don't and up saving anywhere near the money think you can. people see it as this magic bullet. we save all this money and we

can use it other places. it doesn't work out that way. mary: as we start to use more predictive analytics we can probably change those measurements as we target more properly. a tremendous amount of time energy and resources researching who will be here. and: 75 -- ann: i want to turn to the broader definition. we need to be focusing on a viable outcome. the vh owed defined it as an

absence -- complete physical mental social well-being. are we on the road to conquering the divide of treatments? what do we see as the consequences of failing to close this gap? sherry: i think it is important we pay attention to mental and behavioral health. for a long time it was the fact that our insurance coverage was historically much worse. that has actually changed. and then the affordable care act together. there is no parity in insurance benefits. asthat improvement has not

generated an increase in costs. it goes to show few want to do something u.s. ingenuity allows you to do it. we have some serious gaps. even more so than in mental health. we have improved the ability of primary practitioners to step up on mental health. we haven't made the same inroads in substance use. i think there is a lot to be done. there is room for a lot of different approaches. i think there needs to be a lot of innovation on the pharmaceutical side. we need to get better at delivering these treatments and there is a lot of innovation in that space. need to think hard how to address the stigma.

that is a very serious impediment to people getting care. and i think it is importance -- the importance for communities can make as well. it is possible. but everybody can make it. thank you peter -- thank you. michael: the fact is that figure includes everyone who went bankrupt and had a medical bills. that study shows it is generally 3% to 19% p.m. that two thirds number is nonsense.

ann: it is a common good and not an individual one. give us your vision around how nmr -- how a market can become push those goals. michael: what i think we need to do is bring down the cost of health care. if you can bring down the cost of health care the expansion of coverage would come naturally as we need to look at what drives up costs and one of the key factors involved is the fact that we have divorced consumers from the purchase of health care. only $.13 is spent by the person consuming that health care. if you went to the grocery store and every time you thought your groceries, $.87 of every dollar you spend was paid for by someone else. you get a lot more steak and a lot less hamburger. it would drive up the cost of food for everybody. what we need to do is get more

consumers more engaged where they're making practical decisions based on cost versus quality. then when you get into in care and life, are you going to spend $1 million to keep yourself alive for another three months? that decision would may -- i think it would go a long way toward lowering costs for everybody. sherry: when i think about the affordable -- a la bang -- how mothering -- alma people who don't have health care is largely because people can't afford it. we still have to make a way for people to afford it. if you are unemployed and don't

have a job, you don't deserve to be able to see a dr.? i don't think we should be saying that. you have to let the consumer be involved in that way. they have to be involved. they still have to know they will be able to afford it in the long run. aspeople are poor and struggling. if your belly goes out, you can't feel my pain. i think we all need to be more sensitized to people who are -- who do not have as much as some of us have. that seems to me to be the problem we are having. we had this divide.

we are going to be forced to do that. we should be realistic about real -- about what we can afford. ann: i want to open it up to the audience. tower in person audience. we have had dozens of students here. please say her name and affiliation and state your -- state your question briefly.

>> going back to the question of public and private partnerships, we want to know if you -- if you could address how we foster those and create a public community across the spectrum. mary: i think there are a number of examples we have engaged in. it is an example of us taking a public health stance. if we are going to be delivering health care that is fundamentally inconsistent we came together with lots and lots of nonprofit groups to really get the message out.

we also fund a tremendous amount of organizations and community. we think that is really important. we can learn a lot from the nonprofit sector and governmental sector. i know the government about a month or two ago announced an effort to really try to learn more from the private sector. we are believers and really supportive of trying to get into the room with focusing the public sector. how do we work together to make the changes that need to take place in the health care system? there is a lot of stuff we have that the public sector may not have. we have a lot of data that could be useful, that could be used in a number of ways. we have a tremendous amount of engagement with patients and a lot of data and analytics.

the other thing we do as a good corporate citizen is try to put out a lot of -- put out a lot of research and data. we put out a ton of papers and try to really share our learnings so it improves the system as a whole. ann: another question? >> i am vincent with the global institute of public health. thank you so much for the discussion. my question is are republicans ok with people going to the emergency department irrespective of their ability to pay for it? if so why are republicans not ok with people having insurance to

cover that. the mandate requires -- you discuss the mandate requires people to get insurance. i am wondering with student loans burdening, isn't it a distributional of resources to the older who have chronic illness? michael: i'm not a republican, so i have no idea what republicans. i think part of the argument -- republicans say they do want people to have insurance but they want to mandate that people have insurance.

i think the bigger question was we have a problem with poverty in this country. the health care system is a lousy mechanism to cause redistribution. the young person who just got out of college is try get their first job has to pay higher insurance premiums for citizen who may have for five times the income, but getting their premiums lower them to cross subsidize that, i think that is a very poor mechanism.

ann: i think we have time for one more question. >> hi my name is my, i graduated from nyu years ago. you see estimates well over a quarter of expenses that goes over the last few weeks of life. i wonder what folks think about that issue. mary: there is an anonymous amount of misconception. people use health care when they are sick. people are more likely to die when they are sick them when they are healthy. that would be ridiculous. moreover we don't spend a lot on life care comparative to other

countries. that is not an explanation as to why they are high. there is a disproportionate share of the money on the end-of-life. the greatest expenditures are people who doctors believe will live and go on to die or patience doctors believe are going to die and go on to live. it is not like it doesn't happen but it is not the norm for doctors to invest in enormous resources that people are pretty sure not going to make it. while this is a sexy topic and philosophers have a great time talking about it, it is not the problem with the u.s. health care system. michael: we could actually have a moment here.

there was a study where they asked doctors to predict whether a patient was going to live six months or not and you would be better looking a coin -- better flipping a coin. i really get concerned with proposals that allowed third parties to come in and decide whether or not you are going to treat this person. i think the inaccuracy problem is a huge issue there. essentially we shouldn't have veterinary care. when you take your dog to the vet, the dog doesn't get a say in what happens to them. alma: the can't say it because they can't talk.

ann: the purpose of this form is to have public discourse on important topics and we certainly met that this evening. i want to thank our wonderful panelists as well as each of you and appreciate the rest of your evening. >> we want to thank those of you new to the nyu family. thanks to the wonderful panelists. all of them did a fantastic job. clearly we are dean -- we are dealing with thorny issues.

>> as tors stream into d.c. for the cherry blossom festival, news from the washington post that the u.s. capital was on lockdown. lieutenant kimberly schneider spokesman for the u.s. capitol police said the individual died from a self-inflicted gunshot wound. the building and the visitor center have been locked down as a precautionary measure. police are investigating a suspicious package in connection with the shooting. roads have been closed.

>> here are some of our feature programs for the weekend. on c-span2's book tv grover norquist says that americans are tired of the irs and our tax system. sunday night at eight author susan butler on franklin roosevelt and soviet leader joseph stalin. and their unexpected partnership beyond the war. tonight at 8:00 eastern on american history tv on c-span three, university of virginia's professor jennifer murray on how civil war veterans ewing -- veterans reunions have change from the reconstruction era to the present. american history tv is live from the courthouse historical park commemorating the 150th anniversary of the confederate surrender.

>> the supreme court recently heard three consolidated cases on epa regulations for mercury emissions. the court is considering whether the epa was required to take costs into account when it decided to regulate hazardous air pollutants from power plants or whether health risks are the only consideration under the clean air act. these are the first regulations requiring power plants to cut emissions of mercury and other toxic air pollutants, which have been linked to birth the -- birth defects, development of problems in children, and respiratory illnesses. this is about an hour and a half. >> epa's view is contrary to the

text and structure of section 7412. the text sets out to distinct terms and directs epa to consider whether it is appropriate to regulate and whether it is necessary to regulate. epa found it is necessary to regulate because of the existence of public health and it is appropriate in recent existence of public health. >> i'm not sure that is what the epa said. my understanding is that it is necessary because of public health arms and appropriate because there are technologies that can address or remedy those public health arms. on the one hand it said -- the phrase necessary and appropriate went to the existence of technologies. >> when they rely on the ability

to control they did that on the aftermath. we must find this appropriate if the health hazard exists. they have already determined that the health hazard is a necessary condition to the existence of control. >> is there a citation? what are you referring to? >> if you're looking at the brief. i think that is volume one of the appendix. if you turn to volume one page 196, this is the text of the final.

page 206 a. at the top of the page. we must find it appropriate to regulate e.g. use and the clean air act if we determine that a single half a minute poses a hazard to public health environments. and said we must regulate. when you get back to the availability of controls than there is nothing left to be done. as >> as the government going to say that if the credit for relation exists, that it is appropriate to regulate. appropriate is a capacious turn.

>> i think that cuts against the government because one of the things that is encompassed with the term is let's fit all of the circumstances in the context on whether or not you are going to regulate costs is irrelevant circumstance. the fact that they have said we must find it appropriate to regulate means that -- >> they didn't look at the availability technologies. a, that it itself was relevant? is that your argument? >> they said regardless of whether or not controls are available if a health hazard

exists we have to regulate. if i could give an example. >> congress was motivated in the listing these sources because it did not know whether the technology that was going to be put into place to control acid rain would reduce it sufficiently so that regulation wasn't necessary. necessary only if those hats were not sufficiently controlled. >> both of them looked to whether there would be ongoing harm because both necessary and appropriate turned on the utility study. the utility study was something that examined the health hazards would remain after all the other regulations -- >> the health hazard could have been low enough so that no standards were necessary.

>> will be determined how severe the health hazard. the severity went into determining whether or not in public health hazard existed at all. so they look to the effects, and the only place they look to the severity in the final rules determining whether or not a public health hazard existed. once there were enough health effects that there was a public health hazard, then they said we must regulate. an attacker they said we must regulate, it is necessary to regulate, is exactly the same as what they said with appropriate, that we must regulate. >> and a step back for a minute? because this seems to me of this quest for a very particular meaning attached to each one of these additives. if we step back a little bit, i mean that kind of language is used all over the u.s. code, and indeed that kind of language is used in our constitution. and as i understand what courts

have done with that kind of language, is that the separate define meetings for each of those words. it is just not right cousin is a complete phrase. >> i think there's two responses to that. first of all under the necessary and proper clause, if you look at what was dated primes versus the united states it recognize something might be necessarily and not -- necessary and not necessarily proper. the commentary of state legislature might be necessary to count which are trying to do -- >> exactly. we are separated out the two words and said something can be's necessary and not proper. and what marshall said was that necessary to meet absolutely indispensable. it just means he is full. that's quite different from

saying that proper has no role to play. it can be necessary, that is useful, to the federal government and not get proper. >> why do you get to pick what it means? i mean i thought in our agency role be repeatedly say that it determines the vagueness, and there's no legal definition of appropriate, it and actually yes. but by definition, if you're saying it is not self defined, you have to look at it in context. then it's ambiguous. >> i do not think it is ambiguous in context. you used the word appropriate in such a way that everyone understands what your meaning. if i said we're going to figure group of people and were going to go someplace and i would you behave in an appropriate manner, and i told you were going to the library, everyone would know what that means to be quite -- quiet. >> yes paper look at the statue, and is even doing the first

part, the part at issue. and the very next provision says in four years instead of three do a military study that includes costs. i'm looking at it. i can very safely say one study does it use the word costs. the other does. the first one does necessarily intend the cost to be looked at. what is irrational or not plausible about that reading? >> all we have to do is find implausible reading to uphold the interpretation. >> it's a rational because of taking the key statutory word and treating it as surplusage. the liquidation appointed you to earlier is on page four of our reply brief. by treating them as doing exactly the same work, they are reading a word out of the statute. and chevron deference doesn extent so pressed to say we can violate an ordinary rule of statutory construction, which is that independent words have --

>> the word appropriate, as it often is a signal that discretion is what's fitting, and you have expert agency. so the word appropriate, i think of it is commonly used to indicate the expert agency will do when it finds that based on its expertise. you are saying that appropriate necessarily embodies a cost calculation. this is a statute that uses instruction to consider costs. is there any case in all of our decisions where we have said even though there was no instruction to consider costs, epa's required to consider costs? is there any such decision? >> no. i don't think this issue has risen the same way where congress has given broad discretion to an agency, told him to look at all of the circumstances, an agency is that we are going to ignore what is an important part of the

problem. and that's why, in the way they chose cap and i'll look at it, this is a problem under chevron step 1, 2, or under the state farm., because agencies are supposed to not ignore an essential part of the problem as the engage in recent decision-making. >> bullet think -- but i think what justin ginsberg is getting at, is you know sometimes we have done -- we've looked at silence and we said that given that sounds, cost considerations are precluded. so that's an example and whitman. sometimes we sat silent still allows agency discretion. they can do what we want with it. but it so far from our most closely analogous case, which was witness -- whitman, to say not only is cost considerations not precluded, is required with their silence on the subject. now congress wanted require something, and clearly marked car this and other places,

congress knows how to require consideration of costs, to get from silence to this notion of requirements you to be a pretty big jump in >> i don't think a silent when it tells the agency to look at all of the circumstances. and material circumstance in the context of the question that the agency has to answer is that we should regulate under this section, costs are part of the relevant materials -- >> i'm not even sure i agree with the premise that with congress is lovely, cost, the agency is entitled to disregard cost. i think it is classic arbitrary and capricious agency action for an agency to an something that is our justly expensive, and which the expense leslie exceeds whatever public benefit can be achieved. i think that the violation of the administrative procedure act. even without the word appropriate.

>> and that's where there's an overlap between what the study -- >> i'm sorry. the study at issue that the congress committed was simply a study. the administrator shall perform a study of the hazards to public health, reasonably anticipated to occur as a result of omissions by electric utility steam generating unit. so the study that was directed to be made was only a public health hazard. and then it says, the administrator shall regulate these enters -- these entities after, under this section -- if it finds regulation is appropriate and is very after the results of that study. some of the studies directed only at public health hazards, a dozen talk at all about cost just public health hazards, why is the world would one assume that congress was thinking about cost?

why did it do as it did with mercury? make sure the study tell us how much control is going to be costs. but it did do that. it just said tellis if they are a public health hazard. >> and your entrae to limit the considerations that epa was supposed to look at in the study. it only said consider the study -- >> but it only says the study. it says the administrator shall regulate if the administrator finds that regulation is appropriate and necessary after considering the result of the study. after considering the results of the study. the only thing that the study requires is an evaluation of hazards to public health. -- >> i am not sure how you get to them having to do another step, when the only step that

the requisite to registration is studying public health hazards. >> will force of all, even epa does something is limited solely to the things that were studied in that utility study. they rely on environmental harms to justify -- >> does that say after considering only the results of the study. >> know your honor. >> a dozen say that, does it? >> know your honor, that's correct. >> and they have to consider the result of the study. a dozen say they can't consider everything else. and the word appropriate seems to suggest that they may consider other stuff. >> so there's a study this was to look at, but that's not the end of the analysis. the supposed to do something else. the second step is to figure out whether it's also appropriate and necessary to regulate. so i can stop at of the study. and again epa agrees they can look beyond result of the study. they look at environmental harms, which is not particularly mentioned here. >> it seems to me that a very salient feature of the statute

that we have to interpret, maybe the most salient feature is that congress told -- chose to treat power plants differently from other sources. it could have treated the same way, and if it had not done that, then the listing decision would not have taken into account costs, it would have been based on commissions, right? or a was an area source, it would have been based on effective help alone. so what, if anything can we for from that, the congress pointedly decided to treat power plays differently? >> i think we can tell that they are trying to create a different regime. they're trying to dissolving different here than they did elsewhere. >> but they were trying to create a regime, but the reason is pretty clear on its face. they were trying to create a regime because they thought that the acid rain program might have a real impact of what electric utilities were doing.

so they said, wait and see let's see how the acid rain. that works let's see if we raised over problem to solve. and that's the reason why they put the electric utilities in a different category, isn't it? >> and that highlights why costs are for civic and -- are significant. the acid rain program, in particular, was an economically-based approach that was determined to regulate in a cost-effective manner. >> but the point is that the acid rain program did do what congress thought it might have done. it was still left with this issue of continuing harm from the electric utilities. and then once that happened, it seems to me that is natural to take a look at the rest of the statute and to say let's

regulate in a similar way to the way all other industries are being regulated. >> but it -- if they had wanted to do it in the same way, there would've been no need to use the phrase necessary and appropriate. they could have justly gone to the 1010 threshold emissions that apply to major sources and to risk based analysis that goes to area sources. so the fact that they use different criteria here as most of the criteria -- >> hurriedly cut half but they might've thought, let's take a look at the acid rated program. let's take a look at the problem that still remains, if any, and give discretion to the agency at that point. it will be years down the road in a different set of circumstances. >> but the discretion includes looking at the entire problem. i can from the language and circumstances requires looking at the material circumstances. and this ties in to the state farm test radio to look at all the relevant circumstances if you're engaged in reasonable direction. you cannot ignore an import part of the problem.

>> if the reason for the separate treatment was the belief that the acid rain program would be sufficient at some point time to bring omissions from power plays below the level that would result in their being listed if they were other sources, why would a venus every two and a separate provision asking whether it's necessary and appropriate to regulate them? it could have just -- >> i don't see how that can be the explanation. >> they could have just had a three-year delay if that's all they were trying to do, as opposed to -- and then go through their ordinary system. >> no, because it isn't no. they thought it might, they thought it might not. they were going to wait and see. a defendant how how the industry responded to the regulatory requirements of the acid rain program. >> that still does not explain why they chose to use different criteria as opposed to just reiterating the criteria that are under the ordinary think that applies to every other

source. they are still trying to treat electric utilities differently. i would like to return to one point about yes rate program which is that if you're addressing emissions from electric utilities in a program is specifically targeting electric utilities as they did in the acid rain program and that was entirely based on cost of business -- cost effective ness, it makes little sense to look at what's remaining after you party tonight and into saint's area of diminishing marginal utility, were going to say cost are relevant. that's backwards. costs would be especially relevant when you're in the area of what's left over. >> when the statute refers to the emissions standards for the 12% of the best performing plants, the government say that able to leave across consideration? >> i spec will. the way of asian that is to say that looks at the planes across the range of how old they are. so placed that were built in 2005, for example, have been a built in such a way that they are technology where was cost-effective to include certain control measures. what you're looking at plants that were built in 1960's, imposing the same control measures on an older plant is something new. it will be a lot more expensive. it's the difference between renovating her house and building a certainly in the first place >> if that's a mandated database from which the government must operate in it seems to me like there's an implicit cost consideration there. he still same methods of vision that he still say that is insufficient because? >> that insufficient because i'm planning my cousin necessarily take off into effect.

general lindstrom: the fact that some utilities were able to impose things doesn't mean it would be cost effective for other want to do it. justice breyer: suppose that what he 5% of all electricity generators are near waterfalls. this is easy for them, ok? but 75%, it is impossible and they will out of business and we will have no electricity. could the epa, under their current theory, take account of that? the answer i want to say is no but they say yes, they can. earlier in the statute, it says "the administrator may just in which among the classes, types and sizes of resources.' so if you really had the situation, you could say 75% of generators in the less -- generators in the united states

are old technology and he will go out of business. don't they have that position in the 12% and the next one the ability to take into account at least series cost problems? general lindstrom: assuming they have the ability to take into account? justice breyer: yes or no? no, why not? general lindstrom: the reason is that costs are not directly relevant is to the first one is what i was expecting about a 12%. in other words, the example you gave it shows that some might be able to have the lower cost effective approach just because they are not near a waterfall. justice breyer: into the imaginary situation i have imagined, 20% of the generators, for whatever reason, can meet this pretty easily. the next 80% will require the entire gross national product to meet it. supposing that were the

situation. you could supposedly go to the epa nsa, create a second class a separate type. four that is the reason it is so expensive. and therefore, the 12% does not apply to them because they are in a separate class. my question is -- can you legally make that argument? and will they take it into account? edit that is what i want a yes or no answer to. general lindstrom: the answer might be yes in the future, but now we can't do it because --

justice breyer: why are you make the argument here now? general lindstrom: i don't believe either side has made that argument. justice scalia: has the agency made this obvious art meant? has the agency said we're going to take costs into account? general lindstrom: they did not. justice scalia: i don't think so. i never heard of this argument. i want to know a fact. did anyone on your side of the issue asked the agency to take costs into account brutally, roughly, crudely, or did they all say we want it cost-benefit analysis? i would like your characterization of the record on that point. because reading what they have said, it is about cost-benefit analysis

. so that a media idea that maybe everyone interested in cost asked for a cost-benefit analysis. general lindstrom: i think the answer is that we asked them to consider costs. we thought it cost-benefit analysis is the ordinary way that a recent agency decision-making happened, not through some vague sense of what the costs are, by doing an analysis. their position is that we don't need to do that because costs are irrelevant. that is not something we have to consider under these. justice sotomayor: as i understand what happens, listings and standards are the only things that you can generally appeal from. it is a on the final agency action when the standards are

issued. and i thought it was at the issuance of the standards that the government sometimes break up the sources and the amount of emissions that each type of source that justice breyer is talking about can have. i think the listing is just of erotic category -- of broad category. we have had plenty of cases where we have looked at the agency saying this type of source meet these standards, that type of source meet another standard. isn't that the way it works? general lindstrom: that highlights whether or not treating this as a separate listing versus regulatory decision. they did both at the exact same time here. they also promulgated the emissions standards. justice scalia: once they are listed, they are subject to minimum standards, aren't they? general lindstrom: that is correct. justice scalia: minimum standards apply, right? the agency could have discretion as to whether to lift the standards further, but the minimums apply, right?

general lindstrom: that is the epa position. if i could reserve time for my rebuttal. justice roberts: thank you. mr. brownell: mr. chief justice, i would like to make three points to support my colleagues or commit. to begin, power plants are the most recommended source category under the clean act both before 1990 and after the 1990 amendment. it's not only title for acid the positive -- acid deposition program, but a visibility, best available retrofit technology, pollution transport grants targeted at power plants, and a variety of control programs, both quality and air quality. justice kagan: i would think that cuts the other way, that every other significant industry in the u.s. is subject to this program except or electric power plants. -- except for electric power plants. mr. brownell: what it shows is that for other industries, epa instigated in 2010 that for all

other industries, the air toxics program that would impose compliance costs of about $840 million. the single regulation now on air toxics imposes annual cost of $9.6 billion. and what does one get for it? it think it is important to understand some of the questions that have been asked. there is a regulation for mercury, i regulation for non-mercury metals, and a regulation for acid gases. most of the cost associated with the acid gas relation which the agency has concluded present no public health risk. the agency said that our modeling has consistently shown that power plant related

exposures are at least an order of magnitude below the conservative tillie determined safe level. -- conservatively determined safe level. congress addressed pollution with the acid of vacation potential and required reductions of 9 million tons a year at about cost of $1.4 billion. the acid gas program is projected to result in the reductions of acid gases about 500,000 tons per year at the cost of the $500 billion. -- $5 billion. what that back rent shows is that why congress treated powerplants differently. it asked whether it is appropriate to impose further revelation of a specific type, whether it's appropriate to propose regular under this section on the most aggressively related industry under the clean air act. justice kagan: can i take you back to justice breyer's first question?

it was about how these categories work and how the categories enable the epa to mitigate certain dramatic or onerous costs of certain segments of the industry. but that is not an unknown provision of any kind. and indeed, it seems to me that the provision very much cuts against your ultimate. epa, in some ways, can't even figure out the cost until itthe aggregate cost obviously depend on how epa categorizes and sub categorizes. you won't have the epa make the cost calculation before it really can given the structure of the statute. mr. brownell: the cost does dr. into a variety of determinations as made part of the regulatory process. when