poverty and i never thought i would get a lecture on what it's like to live in poverty by jay rockefeller and ted kennedy. this one other thing about mental health that has created a problem, in the 1970's, public policy shifted. we wanted to start mainstreaming. the novel idea to not institutionalize people because of mental health issues. but we have a lot of people on the streets who cannot function. there are some people we tried to mainstream we will never be able to mainstream. they are simply dysfunctional. they end up in jail because it is an easier place to warehouse them. we cannot put them in mental health facilities or

institutions because so many do-gooders in public policy have decided it is cruel. i do not know why it would be cool to put people in a safe environment of the institution. it would somehow be worth to put them in a county lockup facility. we need a little common sense in the system. [applause] host: there are more people in our jails today with mental health problems than in hospitals. startling. governor, our next question comes from the great state of texas. texas is a unique state for all whole list of reasons. i think there is a couple of other gentlemen running for office from the state. the sheriff from jackson county has an intriguing question for you.

>> governor, thank you for attending the conference. i really appreciate that. governor, you said you opposed amnesty to secure the border. how will you handle the millions of illegal immigrants in the country now? mr. huckabee: if we do not secure the border, i think we are kidding ourselves we will have a way to handle the ones who are here. if the pipe in your kitchen bursts and water is spewing on the floor, the first reaction is let's get a new sink. the first priority is to stop the leak. the first priority of the next president should be to secure the border. i believe it can be done in less than a year. i call your attention to the fact that 73 years ago, we built a 1700 mile road between british columbia and alaska. we did it in less than a year

with technology that existed 73 years ago. i'm convinced that, if somebody leads and has the will, we can secure only -- the border in less than a year. that is the equivalent of stopping the leak and deciding how we deal with the people who are here. we have not made the battle over how many people should be here. i think the question is not how many people are coming but why. why do you want to come here? if you want to come to this country because you love america and our laws and you embrace our system and our way of doing things, and you want to learn the language and assimilate into america and live the american dream and work hard and killed the country up like settlement -- build the country up like so many people have done, we will give you thorough consideration.

but if you are coming here because you have heard we will educate, medicate you, let you vote, even let you press 2 and here it in your own language you can even burn our flag and raise yours. i would meet them at the border and say, this may not be the best trip. if someone breaks the law here, i think we have to be serious about sending them back where they came from. we can barely handle our own criminals, much less those from somewhere else. and deportations have been cut almost in half in the last few years. i am not for mass deportation. i do not blame anyone for coming to this country. i get on my knees every night and thank god i live in a country people try to break into

rather than out of. i hope america never gets to the place where we are trying to get out of here. but we have to apply common sense to this. it makes no sense to leave our borders completely unprotected. the country without borders is no country at all. job one, secure the border. then sit down with reasonable people and say, what sink would we like to get to replace it? thank you, sheriff. [applause] host: i recall in the mid-90's, the then president from hope called for additional police on the street. i just came back in the border. it is not just porous. it is an impossible situation. thousands upon thousands of miles.

and there is a single problem facing sheriff's -- a shortfall of manpower. my personal opinion is, we need 10,000 deputies. here is the money, get it done. mr. huckabee: it is sad when the people on the border -- and i have talked to border agents who are exasperated. agents who are demoralized because their government for bids them from carrying out their job and their duties. there is nothing worse than to give a person a job and not let him or her do it. that is happening particularly in the enforcement of our borders and dealing with those that violate immigration laws.

one of the problems the federal government creates is federal funds for the first couple of years and pretending we have solved the problem. they get to the press conference and congratulate themselves. in year three, when the budget is hemorrhaging, the state is supposed to pick up the cost. i believe border security should not be a cost borne by sheriff's. we are asking police to do something that is one of the few things the federal government has authority to do. i wish our federal government would spend more time doing the things it is supposed to do, like fighting enemies and protecting borders, and less things it is not supposed to do, like redefining what marriage looks like. [applause] host: during your tenure as

governor of arkansas -- to go back to mental health -- let's talk about your accomplishments in mental health. particularly to alleviate the burden on sheriffs. they are trying every hour of every day to keep their finger in the dam and it is gushing holes. what do we need to do? not just as president. what are we going to do about this specifically? mr. huckabee: i learned an important lesson from our director larry noris. he said we are locking up people we are mad at rather than the ones we are afraid of. here is one of the things we learned. not violent drug offenders, we found, were better off in

community corrections facilities where they would undergo treatment than put them in the general population of the main prison system. the cost of putting someone in general population, at that time , and this was nine years ago that would have been around $47 a day. we can put them in a community correctional program for less than five dollars a day. so the economics are attractive. but more importantly, the recidivism rate for those in a community program who are there for nonviolent drug offenses, it is so much more effective than it is to lock them up and throw away the key. there are some people we lock up that need to be there. they need to be there for a long, long time. if we lock people up that really do not need to be there, not only is a costly but and they come out they went in as a

nonviolent offender and come out a hardened criminal. we will recapture them in many cases for the rest of their lives. we have to apply a different approach to incarcerate those that are truly the ones we need to be afraid of and a separate them from the ones we are mad at for screwing up. host: i see steve casey in the audience. he is the executive director of the florida sheriffs association. i want to hand the microphone over to steve casey. >> governor, thank you for being with us today. thank you for being a longtime member of the florida sheriffs association. there has been a lot written about the militarization of police. some have said that police have crossed the line from protect and serve to that of a police

state. yet, in the mass shooting in aurora colorado, there are medics would not even go into the theater until the police had been able to clear it. they had to use a bearcat transport to do that. under your administration, what restrictions would you place on the tools law enforcement officers have to do the job? mr. huckabee: those are decisions that need to be made at the command of the scene. i do not think a president should be made -- making decisions in the minutia of handling a crime scene. the issue is, what is appropriate to get some level of control of a situation? in some cases, frankly, when it looks like a war, you need the police to be equipped for what is, in essence, a war.

you do not want them underprepared, understaffed, underequipped. i would always say the decision needs to be what is necessary. what is the most significant level of force necessary for the police to get control in a short a time as possible? there will be times where it requires a military presence. if people are burning down stores and throwing molotov cocktails and shooting guns police officers better be as well-equipped as rioters and the people burning down the city. one thing i am currents -- concerned about is when federal agencies develop their own swat teams at every level. even the federal trade commission with a swat team. i call attention to what

happened at the gibson guitar company in nashville. i know the ceo and i know what happened. they were accusing the federal trade commission of using an imported wood from india that was not licensed. a pretty serious violent issue the wrong kind of wood in a guitar. in the middle of the workday, a swat team burst into gibson guitar, put the secretaries and technicians working on them, all the people in the factory, put them in the floor. held automatic weapons on them. search the building. it was an outright raid all because they wanted to inspect what kind of wood they were using in their guitars. to me, there is no need to use that kind of force.

go in with a search warrant and say, we want to see the kind of wood you are using. there was an accountant in little rock awakened by a battering ram at 2:00 in the morning. there was a tax issue they were accused of. they called the guy and marched the accountant out into the middle of the yard, his wife in their nightgown, in the middle of the night. in front of all the neighbors. because they wanted to seize their computers and look at some records. again, i am not sure that is justifiable. when it comes down to your cities on fire, whatever it takes to get control of the situation. you do not want to have law enforcement underequipped and outmanned and outgunned by thugs on the street. if somebody has superior

firepower, it has to be law enforcement. and whatever it takes, they should be equipped to do that. [applause] host: governor, we appreciate you being with us. i have one last question. i think you will appreciate this. as you said in your remarks, the hostility towards law enforcement today is probably at an all-time high. comparable to the 1960's. even then, we did not see the vitriol we have. deputies under attack. how do we change that? i heard your remarks. i know you said it starts in the family. but what are we going to do?

how are we going to stand tall for law enforcement? will this happen day one of your presidency? is it going to impact slowly? mr. huckabee: to borrow a phrase , there is a new sheriff in town. but that has historically meant is these days of law enforcement is over. in the same way, the next president should be able to say there is a new president in town. no longer will the blame crime on those trying to enforce the law. he will blame it on those who break it. i do not think i can emphasize enough how important it is for the leader of any organization especially the leader of a country, to set the tone. that is also set by the people he appoints. to have an attorney general who wants to stand with law enforcement rather than castigate them and question their every move.

it sets a tone for the country. it is like the tuning fork for an instrument. once it makes a sound, all the instruments to to the tuning fork. the president is like the tuning fork of america. he will set the tone and the mood. i would like to believe that, come january of 2017, we can say to launch was meant, there is a new president in town. he is not in your way but with you. there will be a different approach throughout the system about the appreciation and support of lawn was meant -- law enforcement across the spectrum. [applause] host: it has been almost 50 years. it has been almost 50 years

since our criminal justice system has had a complete spectrum overhaul. you may be aware for a long time, sheriffs have been calling for a complete overhaul of the criminal justice system. some things are right, some things are just under. this past friday, we had the honor of hosting an elite group of folks who are responsible for leaving other entities in the criminal justice system. the american prosecutors association, the national association of mental health issues. we had 30 organizations, off the record, no spotlight. and sheriffs feel strongly -- the question is this -- congress

has introduced a bill to ask the administration to look at criminal justice were. here is the question. let's assume the president will buy it. is this something you will commit to today, that we should do this and you should keep it as an ongoing endeavor? mr. huckabee: i know it will sound like i am pandering to say i will. that is the right answer. but it is the right solution. there is no way decisions like that can be made from the top down. they need to be made from the bottom up. people closest to the problem are best able to solve it. as governor, i made everyone in my staff work in a state agency every month for half a day. work at the delivery point of

government. for example, i would be a medicaid intake officer. another day, i would make drivers licenses. i even mowed the lawn at a state park. it was not for show. i would ask employees, tell me what you could do better. if you working for the day, what would you do to make the system better? i got more ideas at the bottom than i did talking to the geniuses who came up with these ideas. the reason i would do this is not because i am saying this to you. i am doing it because of the practical experience of having learned the best solutions come from the people out there delivering remedies, not just the ones that think they know it but are far removed from it. one of the most important priorities for the next president is to default power to

state and local government, which i believe the founders intended. local and limited. the best way we can have criminal justice reform is to let the people who administer it have a hand in what it looked like when we get finished. the answer, based on my own experience, is it is the only way to make a real reform work. thank you for having me here. thank you. [applause] host: governor on behalf of the national sheriffs association, i am pleased to present this flag

that was flown over fort mchenry in your name. sir, we wish you godspeed, safety. get home safe. thank you and good luck. mr. huckabee: thank you very much. [applause] [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> tomorrow, governor chris christie announces his presidential bid. he is expected to be the 14th candidate to enter the race. live coverage at 11:00 a.m. eastern on c-span. >> the road to the white house with louisiana governor bobby jindal, answering questions about social security and the national debt at a politics and eggs breakfast at saint handsome

college. gov. jindal: thank you. thank you very much. i want to thank the institute of politics for being our host. thank you for being here as well. this is my first stop as an announced candidate. i should introduce my better half. if i can convince her to marry me, that is reason enough to vote for me. [applause] gov. jindal: we have known each other since high school. i like to describe each other as high school sweetheart. i want to tell you how glamorous it is to be running for president. i want to give you a look behind the curtain. i am thrilled to be here.

yesterday in louisiana, where we lived before i moved to the governor's mansion, there was an over packed room of people. families that have flown in across the country. carried live on national tv. i was just amazed by the crowd intensity. as soon as i was done, i did a quick live interview on fox news. then literally had to go to the airport. just enough time to get on a plane, to fly through charlotte to boston. then i was supposed to wake up this morning to do seven different tv interviews for coming here. you can imagine the whirlwind of activity. we have three children, 13, 11 and 8. it was all we could do to threaten them to behave. so everything goes great.

the crowd was wonderful. the interviews go great. we get to the airport. if you have flown recently, you know what i'm going to tell you. there is a delay, but we will still make the collection. then they cancel the flight. then they on cancel the flight. i didn't realize you could do that. by the time we got on the plane several hours later, there was only a few dozen people on the plane. we get to charlotte. our bags are not in charlotte. we are not making it to boston. they said you can either do the morning tv and get on a plane and miss the politics and eggs, but i said, we will cancel the tv and get here. at midnight, the walmart closes

at the charlotte airport. me and my wife are pushing a shopping cart. looking for shaving cream and toothpaste and clothing and walmart. a couple of the greeters go, you were on tv. if you see a couple selfies online -- but i am thrilled to be here. the first of the nation primary is an important tradition. we will be here whether it is hot or cold. i spent four years of my life in ohio. my brother spent four years of his life going to college here. i enjoyed not only being here as

a governor, but family visits as well. first of all i will tell you a little bit about who i am and what the campaign is about. and i want to leave a lot of time for questions. for those of you who do not know me, i want to introduce myself. i will tell you about who i am and my family story. 40 years ago, my parents came halfway across the world in search of the american dream. here is the amazing thing. to this day, it gives me goosebumps. it was the first time they had gotten on a plane. there was no internet back then. they could not go online and google that roush -- baton r ouge. they were coming to an idea as much as a geographic place. the idea of freedom and opportunity. they were coming to the american

dream. they came so my mom could be a student at lsu, so my dad could get a job. my dad did not come here to be dependent on a government program. he started calling company after company, looking for work. at that time, he had a thick accent. i do not mean a southern accent like me. he had a thick accent. i do not know how many days it took. i do not know how many people left at him. but he finally got work at a railroad company. they set, you can start work monday morning. i know some students do not do this when they interview for the first jobs. this is something you should not do with your new boss. my dad tells his new boss, look,

i do not have a car or a drivers license. you will have to pick be up on your way to work. who does that? who tells their boss that? the guy was so amazed by my dads and doozy as -- enthusiasm. six months later, i was born. i am what you would call a pre-existing condition. that meant my parents insurance did not cover me. there was no contract or paperwork. my dad just went to the doctor and shook hands. he said i will send you a check every month. i do not know how that would work today. i asked my dad, how do you pay for a baby on layaway? if you skip a payment, can they take it back?

he said, you are paid for. you were such a bad baby, we would have set you back if that was an option. my parents came in search of the american dream. today, president obama and hillary clinton are working to change the american dream into the european nightmare. they are trying to turn it into socialism. this is an important time for our country. every politician will tell you the next election is the most important. i have never set -- heard them say, it does not matter. but this time, it is really true. we have a fundamental choice. i had a generous introduction and could have sat down after and been done. when i was elected governor, my state was reeling from hurricane katrina. 25 years in a row, more people

have left louisiana then come to louisiana. one of the worst public school systems in the country. indeed, a lot of folks are wondering if they could come back or rebuilt. when i got elected, we got elected on big changes. we did exactly that. we cut our budget 26%. we got 30,000 fewer bureaucrats from the day i took office. eight credit upgrades. best credit ratings in decades. top 10 state for private-sector job creation. privatized our hospital system. statewide school choice. nearly 100% of our kids are in charters.

largest income tax cut in state history. we made a commitment we would not grow the government. when you do that, you see results. we have more people working than anytime before in state history earning higher incomes than before. highest per capita state income raking. but there are people that complain. there are people in big government that say, there is never enough money and government account. what we did in louisiana is what we need to do in d.c. we show them we do not measure prosperity by success of the government. we measure prosperity by how our people are doing in the world. that is the choice we face in d.c. you cannot have both. hillary clinton measure success by how the government prospers. we measure success how real families are doing across the

country. this campaign, we have a lot of people running. we have a lot of slick talkers. there is a difference between talking and doing. we have a talker in the white house. they have given great speeches. we have a one term senator who has never run anything that needs on-the-job training. every republican will tell you i will get rid of the size of government. we are not just talking about it . we actually did it in our state. republicans talk about how they will protect the unborn, fight isis, repeal obamacare. we will actually get it done. i am running not to be somebody but to do something. it is time to replace the talk with action. i served in washington dc.

i would like to say i was sentenced to two terms. in washington, they say certain things but do another. it is not hard. if you want to be invited to all the cocktail parties, if you want the washington post to write nice things about you, it is not hard. all you have to do is realize the things you cannot do. you go along and get along. they will tell you we talk about $18 trillion in debt but do not do anything about. we say we will repeal obamacare but you cannot do anything about it. the president is declaring victory. you may have seen the supreme court ruled one part of his law is not unconstitutional. this is a success? if congress were to double our taxes tomorrow and the court said that was not unconstitutional, that would be a success?

i do not agree, and never mind that obamacare decreases our freedom. never mind that it forces us to buy insurance. nevermind that it forces people into an outdated medicare program. nevermind that it does not reduce costs the way he promised. nevermind that it creates a new entitlement program when we cannot afford the ones we got. nevermind you have a program that saddles our grandchildren with more spending between doctors and patients. i think it is time for conservatives to make a case not only for repealing but how they will replace obamacare. how will we protect the vulnerable? the court may have spoken today but the people of america need to speak. we need to replace and repeal all of obamacare. the president said he wanted to reduce costs.

he actually disagreed with secretary clinton. he was right as a candidate. he was wrong as president. in d.c., they tell you you can talk about securing the border but cannot actually do it. you can talk about these things but not do them in d.c. the american people are sick and tired of candidates saying one thing and doing another. yes, i do not have permission from washington to run. but voters are saying, we do not want the smart people in d.c. to clear the field one of the things you may have seen out of d.c. is an on -- unprecedented assault on what kind of health care insurance you should buy. whether you should have second amendment rights. whether you should drink big g ulps. one of the most egregious

assaults is on the first amendment. you may have heard hillary clinton say we need to have our religious believes changed. my religious believes are not between me and hillary clinton. there are between me and god. in america, we tolerate and promote diversity. we celebrate that people can have and live their lives according to conscience especially in our country. we believe you have the right to live your life as long as you are not hurting somebody else. unfortunately, the left no longer believes in that. they want to take god out of the public square. our first amendment liberty rights are fundamental. i will say this slowly so even hillary clinton can understand. the united states of america did

not create religious liberty. religious liberty created the united states of america. it is the reason we are here today. too often, the left has forgotten their history. one of the things that concerns me is the efforts by hillary and president obama to divide us. they're trying to divided by gender race, geography, income. i am tired of the division. i am tired of hyphenated americans. my parents came here to be americans, to raise their children as americans. my parents are proud of their indian heritage but if they wanted to raise their kids as indian, they would have stayed in india. i say no more indian americans irish-americans. we are all americans. something else you are not supposed to say, but i will say it anyway.

it does not make sense to allow people to come to our country and use those freedoms to undermine those freedoms for others. if you come to the country, you should come legally, learn english, share our values. and you should get to work. roll up your sleeves and go to work. smart immigration policy can make our country stronger. it just seems to me, as we turn our attention to the election, you will hear some -- and jeb bush said this recently -- he has said we need to be willing to lose the primary to win the general election. i could not disagree with that more. i want to translate what he is saying. you hear other republicans say this all the time. we have to make the left like us. we have to make the media like

us. we have to hide who we are and what we believe. we have done that. i have a novel idea. why don't we run an election race on ideas and principles? why don't we make the argument our principles will help every family do better in america? the idea that limited government , school choice, and competition can let every kid have a chance to get a great education. we will not leave unprecedented debt to our children and grandchildren. why not provide a real alternative to the american people? it is time to stop hiding who we are, what we believe. it is time to stop believing if we can just get the media to like us, we will somehow be successful. it is time for us to stand for our principles and ideas. if i were elected president, i

will have four objectives. the first being repealing and replacing obamacare. with a system based on choice, competition. i hope we will get a chance to talk more about that. secondly, we will restore our nation's defenses. be unafraid to identify the enemy as radical islamic terrorism. how can the president beat the enemy when he will not name the enemy? the president has declared war on the crusaders for medieval christianity. and against the junk food in your cupboards. i made a deal with the president that said i will protect my kids from microwave popcorn and oreos if you protect us from islamic terrorists. the third thing i will do is grow the private sector by shrinking the size and scope of

federal government. and we will finally secure our borders. they talk about that in d.c. but never actually do it. i want to close with this observation. containment is not a strategy for the united states. general patton famously said that americans like to win every time. that is the strategy we have to adopt going forward. i want to say this today. i am asking people to join a cause. to join the movement. this is bigger than a campaign. america is the light to the world. it is the hope of free people and people who aspire to be free everywhere, it is time we started to act like it. i know our best days are ahead of us but it is not inevitable. we must not be the first generation to mortgage our children's future. leaving them fewer opportunities and we inherited.

to me, that is what this election is about. it is nothing less than the future of america. it is nothing less than restoring the american dream. so that our children can say my mom, my dad, my grandparents fought hard so i could live in the greatest country in the history of the world. the united states of america. thank you all very, very much. [applause] >> we have a few minutes for >> we have a few minutes for questions. >> you mentioned obamacare. you have been unbending in your critique of obama care, that it should be repealed. in light of the ruling today and upholding the voucher funding mechanism, how realistic is it

to go forward to address that issue? governor jindal: i think it is realistic. the people don't want obamacare. they won election in purple, red and blue states campaigning on this. it has not done what they said it was going to do. forget keeping your doctor -- he told us he was going to cut our premiums $2500 and he did not do that. i put forward a straightforward plan. the first principle, let's make it affordable. let's give everybody a standard tax deduction so they can buy it on their own. second, let's bring voluntary purchasing tools. so folks can get protection whether they buy it through their employer or not. third, let's create the opportunity to buy insurance across state lines. fourth, let's expand access to wellness and savings. let's crack down on frivolous lawsuit. do those things and we can

absolutely drive down the cost of health care. analysis shows that we can reduce premiums on average by $5,000 for a family. secondly, let's help those that are vulnerable. there are people that because of pre-existing conditions cannot afford health care in the traditional market. my plan would give $10 billion a year to the states for high risk individuals to provide care. third, let's give affordability and choice to consumers. we have specific ideas about premium support in medicare and medicaid. give states more flexibility with more cap ability. i think that senator obama was right when he told senator clinton, the issue is not an mandate, the issue is affordability. his plan does not fix that doesn't address that. here is where i think republicans have made a mistake. even before the court ruling they should have voted on alternatives. it is great they voted dozens of

times to repeal obama care, but we have to show americans what we are for. we can't simply just be against things. obama's policies will be on the ballot but secretary clinton -- we have to say that this is what we are for. this is how our policies were that are. the court has spoken, now it is time for the people to speak. >> thank you for being with us. thank you for the great presentation. thank you for the travel problems you had. i'm a spokesperson for the aarp new hampshire. i would like to ask you about social security. not for my generation -- i came through world war ii so i want -- will not tell you my age, but

i am on the down slope. i am talking about social security for future generations. i was questioned the other day will it be there for me? i put that to you. how would you strengthen social security for the future? governor jindal: that is a great question, thank you. if we don't do anything, everybody knows a dirty secret that social security is not sustainable. medicare is not sustainable unless we take action. they all pretend like it's not true, but you look at the liabilities, they make $18 trillion in debt look small in comparison. we want this to be a campaign of ideas, not just personalities. we will put a detailed ideas on social security. we have to take steps to make sure that we keep the promise that seniors and others who have

been paying in continues to be there for future generations. i have young children, i wanted to be there for them, as well. we will put out detailed plans, like we have for medicare. i spent a year of my life as the director of a bipartisan commission on the future of medicare. we had a bipartisan majority that recommended premium support. we can do that in a way that helps taxpayers and beneficiaries. we need to look at social security to protect those who have come to depend on the program and at the same time protects it for future generations. doing nothing is not an option. >> yes, sir? >> i am with a campaign called first budget. the are a campaign organized by

the committee for a responsible federal budget. you spoke about young people and as a young person, you mentioned the $18 trillion in debt. many of us understand that if this debt grows, we will be the people who have to shoulder it. what are your plans to reduce the deficit? how would you do it with a bipartisan approach? governor jindal: that is a great question. the folks who will pay this will be the future generation. we have to shrink the size of government. we put out specific ideas and specific departments -- for example, the federal department of education spends billions of dollars on teacher quality programs that have not been shown to improve teacher quality. we have to get rid of that wasteful spending. same thing is true with title i dollars. they should be blocked or the dollars should follow students. i think epa can be reduced in

terms of trying to micromanage the economy -- we will have to deal with social security and medicare and entitlement programs. we need to make fundamental changes to the way washington, d.c. works. it is easy to say, if we had more republican members, it could be better. we have had republican and democratic majorities run at the debt. we have specific structural changes. the only way you will balance the budget is a combination of cutting government and growing the private sector. right now we have this 2% growth rate. that cannot become normal. as a country, we are done. in terms of the structural changes, i would like to see a balanced budget amendment in the constitution, a super majority vote before they can raise taxes, a supermajority vote before they can grow the federal government spending faster than

the private sector, i would like to see term limits. i would like to see -- in louisiana, we have those things in our constitution. --i would like to pay members of congress a per diem for every day they stay outside washington . mark twain said, you are always safest when the legislature is out of session. now we have a permanent ruling class that does not think the rules apply to them. they think the economy is fine. in the bubble in d.c., it appears fine. it is a false economy. for many, there was no hint of the recession.

again, i am a republican. i campaign for the senate last year. i am glad republicans took over. i do not think having one party control means that we can't address the problem without real changes. my first term, we had a democratic majority. we did school choice, and income tax cut. we cut our budget working with democrats. it takes principled leadership. this president lectures people. he does not work with people. it takes the american people saying enough is enough, saying this is important. it is not about who can tell the best jokes. it is about what opportunities we leave for our children. >> amy? >> hello governor. welcome to new england.

you represent a seaport state. the importance of our waterways are critically important to the new england economy as well. the current administration has talked a lot about the importance of funding for our ports. maintenance funding. in reality, they have only dedicated half the funds that come into the harbor maintenance trust fund, paid for by shippers , to its intended purpose. congress has expressed a desire in the next decade to dedicate 100% of funding paid for by shippers for its intended purpose. as president, would you support a similar pathway? gov. jindal: absolutely. louisiana has five of the nation's largest ports. the flooding you saw in texas and oklahoma a few weeks ago the horrific scene in austin

that water drains somewhere. it eventually comes down the red river through shreveport. we had historic flooding like we had not seen in 70 years. part of the reason the forecast cap getting revised overnight saying the crest would be higher and later, is that they had not accounted for the fact that much of the area was silted in. so we saw the loss of property. and we saw tectonic damage. mississippi has not dredged to appropriate levels. that is ocean cargo that cannot get in. in some instances, we are competing with mexico and other countries for work we should be doing in our country. they cannot get into those channels. we had that issue with morgan city. so i am well aware and

absolutely support -- there is a bill in congress called the ramp up act that is one of those solutions. the federal government charges a user fee to the people who use the infrastructure. that goes into a fund that is supposed to pay for dredging. instead, the money either sits there -- it is used to mask deficits in spending. it is used to help claim they are closer to balancing. they use it to pretend the deficit is not as big as it is. all the shell games, no wonder people get cynical. they say, you asked us to pay a fee. we did. it should at least be used for the purposes you told us. in the louisiana, think about this when it comes to your tax dollars. they drench the mississippi river and dump it on the

continental shelf. they have to put it somewhere. then the army corps of engineers turns around and goes and builds elsewhere to rebuild the coast. louisiana asked, you are dredging. why are you dredging it and dumping it and spending more money to get more silt? wouldn't it be better to build a pipeline? as a taxpayer, it seems to make sense. the answer they came back with was it would save money, but as an individual component, it was not cost-effective. it was cheaper to dump the silt than building a pipeline. forget that they would then go buy silt. so not only are they not spending money the way they

should be on infrastructure when they spend it, they are not always spending it the most effective way. absolutely, we would support efforts to dedicate those dollars to where they were supposed to be. >> maybe one final question? if not, maybe i will ask the final question. there have been two economic issues the senate has been debating -- the tpp and xm bank. your thoughts on whether we should be in a trade negotiation position? do you like the outcome? xm bank is about to close down. some particulars of the new england council are concerned

about them losing their clout. gov. jindal: on tpp i am opposed to giving this president fast-track authority. i think trade can be good for our country when done right. i think tpp can be an important deal. you have taiwan, south korea japan. you have countries like india and vietnam looking for american leadership. they will not wait forever. this president said he would give it to asia and did not do it. -- pivot to asia and did not do it. it is a great opportunity for the country if done right. the reason i oppose fast-track authority for this particular president is i do not trust in. he has violated constitutional authority before.

iran is on the verge of becoming a nuclear power. why would we give him more authority? there are some against fast-track that do not like trade. that is not my position. i am for presidents having tracked authority. i am not saying abandon tpp. i'm just saying do not give this president fast-track authority. let us read the trade deal and have an open debate. if it is really that good, why not let us see it? in terms of import-export bank, i am for the winding down. i think governors picking winners and losers was a mistake. it is true -- if it is true the bank is self-sustaining, it will correct itself. america is not shy about me money. -- making money. the other argument here is it is

about helping other countries. if it is foreign aid shouldn't it be part of the foreign aid budget? the idea that governors will choose which businesses to help, to me we have to get away from that. that means both democrats and republicans have to be giving way their special treatment and have an honest reform debate. under reagan, it was a bipartisan initiative and that's the kind of tax cuts that could save us hundreds of billions of dollars overseas if we could do it here if we have a more rational tax codes. i'll close with this. i talk a little bit about louisiana. when i talk about the 90,000 jobs and capital investments.

our competition is not texas or other states, it's other countries. they steel hundreds of millions of dollars in the northwest steel facility and the list goes on and on and on. we can compete. every one of those companies they looked at tax rate and skilled workers an we have -- and we had to win that competition. i'll close with this observation. it was a pure act of faith and optimism that brought my parents here. they hadn't visited. my mom was pregnant. it's not like thraffs plan b. they had confidence this was a place where you could have freedom. i am that optimistic about our future. but we have to make the right

choices. reagan reminded us that every generation has to do that to secure the opportunities an freedoms we have today. this is our time to decide. that's why i'm asking people to join the cause, to learn more. go to bobbyjindal.com. thank you thank you very much for allowing me to speak to you. >> more road to the white house tomorrow when chris christie officially announces his presidential bid from his old high school. he's expected to be the 14th g.o.p. candidate to enter the rafmentse our live coverage at 11:00 a.m. eastern here on c-span. >> brazilian president delma rue receive is in meeting with president obama. it's been two years since she canceled her state visit over rumors that the u.s. had spied

her phone calls. it's tomorrow at 12:00 on c-span. live coverage of the u.s. house congressional hearings and news conversations bringing you events that shape public policy and every morning washington journal is live with elected officials, policymakers and you can comment from facebook, c-span and twitter. >> the supreme court ruled today that the environmental protection agency did not properly consider the cost of the obama administration's quality rule in a 5-4 ruling the justices said they should have taken into the cost for utilities before deciding they could set limits for the toxic air pollutants it regulated in

2011. up next we'll hear the justices ask lawyers questions that led to today's decision. this is about an hour and a half. >> oral argument this morning in case 1446, michigan versus the environmental protection agency and the consolidated cases. >> mr. lindstrom? >> mr. chief justice, and may it please the court, epa's view that it can decide to regulate electrical utilities without considering cost is contrary to the text and structure of section 7412. the text set out distinct terms about whether it is appropriate and necessary to legislate. -- regulate. epa found it is necessary to regulate because of the existence of public health terms

-- so it's interpretation. >> i am not quite sure that that is what epa said. my understanding is that it is necessary because of public health harms and it is appropriate because there are technologies that can address and remedy those public health harms. on the one hand, it said that the phrase "appropriate" lends to the harms, the phrase "necessary" went to the -- the phrase appropriate went to the argument of technologies. >> when they relied on the availability of controls, they did that home -- only after saying they must find that appropriate after determining the health hazard exists. they have already determined that it exists. >> can you give us a citation of their opinion? >> the argument speaks for itself. what are you referring to?

>> this is in the brief. >> my brief? >> yes your honor. that's volume one of the u.r. petition appendix. let me find the language. i have the volume. if you turn to the u.r. petition appendix, volume one. >> good lord. >> page 196. this is the text of the final rule. page 206 a. i misspoke the first time. 206. it says, we must find it appropriate to regulate e.g.u.'s under clean air act section 112 if we determine a single half emitted

poses a hazard to public health or environment. we must regulate. the phrase must regulate means when you get back to the ability to control there is nothing else to be done. you've already said we have to do it so the availability of controls isn't doing any additional work. >> is the government going to say that if the predicate for regulation exists either emissions then it's appropriate to regulate. that's what the government will say. i mean, that's -- appropriate is a term --. it's appropriate to regulate if it's an emission. >> it is a capascious but i think it cuts against the government. one of the things in the term appropriate is that in all of the circumstances in the context of determining whether you'd

regulate cause is irrelevant circumstance so the very fact it is cuts against them. the very fact they said we must find this appropriate to regulate means the other -- >> well, they didn't look at the availability of technologies? is that what you're saying that? that they thought the ability of technologies was itself irrelevant to the determination? is that your argument? >> we're not saying they thought it was irrelevant. they thought, well i guess logically irrelevant. they thought it was something they did look at when they did the utilities study they examined the availability of controls but then they said regardless of whether controls are available if the health hazard exists we have to regulate. >> i'm sorry. i thought they said only if it was necessary. congress was motivated to not listing theas sources because it didn't know whether the technology that was going to be put in place to control acid rain would reduce the hazard sufficiently so regulation wasn't

necessary. i have a different understanding of appropriate and necessary. appropriate if there were haps but only necessary if those haps were not sufficiently controlled by the other technology. >> both looked at if there was ongoing harm because both necessary and appropriate turned on the utility study which examined what health hazards would remain after all of the other regulations -- >> the health hazards could have been low enough so that no standards were necessary. >> well, they determined how severe, the severity of the health hazards. the severity when in determining whether or not a public health hazard exists at all so they looked at the effects and the only place they looked at severity in the final rule was determining whether the hazard existed. once there were enough health effects there was a public health hazard they said we must regulate. the fact they said we must regulate, necessary to regulate,

is exactly the same as they said was appropriate that we must regulate. >> hey can i step back for a minute? it seems this quest for very particular meanings attached to each one of these adjectives, appropriate means x and necessary means y, if we sit back a little bit, i mean, that kind of language is used a l over the u.s. code. indeed, if that kind of language is used in our constitution, the necessary and proper clause, and as i understand what courts have done with that kind of language, that they haven't insisted that there be separate defined meanings for each of those words. when john marshall was doing this he starts off with the word "necessary" and then he said, no. this is a phrase. we have to understand what the phrase as a whole means. and why shouldn't we similarly say this idea that, you know you can catch them in a redundancy or a super fluidity it's just not right because it's a complete phrase.

>> i think there are two responses. first of all the necessary and proper clause. in prince vs. united states this court recognized something might be necessary and not necessarily proper. it may be necessary -- >> we have separated out the two words and said something could be necessary and not proper. and what marshall said was that necessary doesn't mean absolutely indispensable. it just means useful. 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 yet not proper. so -- >> so what do you get to pick what it means? i mean, i saw it in our agency. we repeatedly say if a term is ambiguous and there's no legal definition of appropriate, it's

contextual, yes, but by definition if you're saying a word that's not self-defined you have to look at, in context, and it's ambiguous. >> i don't think it's ambiguous in context. you can use the word appropriate in such a way everyone understands your meaning. if i said we're going to go someplace and take a group of people and i want you to behave in an appropriate manner and i told you we're going to the library everyone would know. >> i look at this statute and i see them doing the first part the part of issue. and the very next provision says, in four years instead of three do a mercury study that includes costs. i'm looking at it. i can very safely say one study doesn't use the word cost. the other does. the first one doesn't necessarily intend costs to be looked at. what is irrational or not plausible about that reading? because all we have to do is find a plausible reading to uphold

the e.p.a.'s interpretation. >> irrational because they're taking a key statutory word and treating it as surplusage. the language i should have pointed you to earlier is on page four of our reply brief. by treating them and doing the exactly same work they're reading a word out of the stuste and it doesn't extend so far as to say we can violate the ordinary rule of statutory construction. >> the word "appropriate" often is a signal that -- you have an expert agency. so the word "appropriate" i think is used to indicate that the expert agency will do what it finds fit based on its expertise. so how -- you are saying appropriate necessarily embodies a cost.

a cost calculation. and yet this is a statute that uses cost, directs e.p.a. to consider costs multiple, multiple times. is there any case in all of our decisions where we can say even though there were no instructions to consider costs, e.p.a. is required to consider costs? is there any such decision? >> no. i don't think this issue is written the same way where congress has given broad discretion to an agency, told them to look at all of the circumstances, and the agency has said we're going to ignore what is an important part of the problem. that's why in the way that judge cavanaugh looked at it this is a problem under the state farm doctrine because agencies are supposed to not ignore an essential part of the problem as they engage in reasoned decision making. >> i think what justice ginsburg is getting at general

lindstrom is sometimes what we've done is looked at silence and we've said that given that silence, cost considerations are precluded. right? so that's the example in whitman. sometimes we've said, silence still allows agency discretion. they can do what they want with it. but it's so far from our most closely analogous case, which was whitman, to say, not only is cost consideration, you know, not precluded, it's required when there's silence as to that subject. now if congress wanted to require something and clearly congress required this in other places, congress knows how to require consideration of costs, to get from silence to this notion of a requirement seems to be a pretty big jump. >> justice kagan, i don't think it is silent when it tells the agency to look at all of the circumstances and the material circumstances in the context of the question the agency has to answer is should we regulate

under this section, costs are part of the relevant materials. >> i'm not even sure i agree with the premise that when congress says nothing about costs, the agency is entitled to disregard cost. i would think it's classic, arbitrary and capricious agency action for an agency to command something that is outrageously expensive. and in which the expense vastly exceeds whatever public benefit can be achieved. i would think that's a violation of the administrative procedure. even without the word "appropriate." >> and i think that's where there's overlap between what the state -- >> sorry. the study of issue that congress commanded was simply a study, the administrator shall perform a study of the hazards to public health, reasonably anticipated to occur as a result of the emissions by electric utility steam generating units.

so the study that was directed to be made was only a public health hazard -- of public health hazards. and then it says the administrator shall regulate these entities after -- under this section if it finds regulation is appropriate and necessary after considering the results of the study. so if the study is directed only at public health hazards, it doesn't talk about -- it doesn't talk at all about costs. just public health hazards. why in the world would one assume that congress was thinking about costs? why didn't it do as it did with mercury? the study tells us how much control is going to cost. it didn't do that. it just said tell us if there are public health hazards. >> your honor, it didn't limit the considerations e.p.a. was supposed to look at.

>> it says only the study. >> it doesn't say only the study. >> it says the administrator shall regulate if the administrator finds such regulation is appropriate and necessary after considering the results 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'm not sure how you get to them having to do another step. when the only step that is a prerequisite to registration is studying public health hazards. >> first of all, even e.p.a. doesn't think it's limited solely to the things that were studied in that utility study. they relied on environmental harms to justify. >> after considering only the results of the study? it doesn't say that, does it? >> no, your honor. that's correct.

>> they have to consider the results of the study. it doesn't say they can't consider everything else. and the word "appropriate" seems to suggest they may consider other stuff. >> maybe the most salient feature is that congress chose to treat power plants differently from other sources. it could have treated them the same way. and if it had done that then the decision would not have taken into account cost, it would have been based on emissions, right? or if it was an area source it would have been based on health alone.

so what if anything can we infer from that the fact that congress pointedly decided to treat power plants differently? >> the reason is pretty clear on its face. they were trying to create a different regime because they thought that the acid rain program might have a real impact on what these electric companies were doing. let's see if the arid range rain works and let's see if we still have a problem to solve. that's the reason why they put them in in a different category, isn't it?

>> once that happened it seems to me that it's natural to take a look at the rest of the statute and say let's regulate in a similar way to delay all other industries that are being regulate. >> but if they wanted to do it in the same way there would have been no need to use the phrase "necessary and appropriate." they would have gone to the risk based analysis. so the fact that they used different criteria here as opposed to criteria that's listed in 742 c. >> they might have thought let's take a look at the acid rain program. let's give the discretion to the agency at that point because it will be years down the road in a different set of circumstances. >> but the discretion includes looking at the entire problem. again, the language in the circumstances requires looking

at the material circumstances. and this ties into the state farm test. you have to look at all of the relevant circumstances if you're going to use your reasoned decision. you can't ignore an important part of the problem. >> if the reason for the separate treatment was belief that the acid rain program would be sufficient at some point in time, to bring emissions from power plants below the level that would result in their being listed if they were other sources, why would it be necessary to enact this separate provision asking whether it's necessary and appropriate to regulate them? i don't see how that can be the explanation. >> yes, your honor. they could have had a three-year delay if that is all they were trying to do as opposed to -- and then go through the ordinary system. >> they didn't know. they thought it might. they thought it might not. they were going to wait and see. it depended how the industry responded to the regulatory requirements of the acid rain program. >> that still doesn't explain

your honor why they chose these different criteria as opposed to just reiterating the criteria that are under 7412 c under the ordinary thing that applies to every other source. they are still trying to treat electric facilities differently. i'd like to return to one point about the acid rain program. again, if you're addressing emissions from electric utilities and a program specifically targeting electric utilities as they did in the acid rain program and that was entirely based on cost effectiveness, it makes little sense to look at what's remaining after you've already done that and then to say in this area of diminishing marginal utility we're going to say costs are irrelevant. that's backwards. costs would be especially relevant in the area of what's left over. >> when the statute refers to the emissions standards for the 12% of the best performing plants, will the government say that that implicitly is a cost consideration? is that their position and if so how do you answer it? >> i expect they will. the way i'd answer that is to say that looks at plants across the range of how old they

plants built in 2005 for example might have been built in such a way that they have technology where it was cost effective to include certain control measures but if you're looking at plants built in 1960 imposing the same control measures on an older plant is something that would be a lot more expensive. it's the difference between renovating your house and building a certain way in the first place. >> that's true. >> mandated base from which the government must operate >> it is. >> and it seems to me there is an implicit cost consideration there. you still say that's insufficient because -- >> yes, your honor, insufficient because it's not -- i'm explaining why it doesn't necessarily take costs into e -- into consideration. the fact that some utilities were able to impose things doesn't mean it would be cost effective for others to do it.

>> why isn't that taken care of by, i mean, if they have costs somewhere, so they shall the other side says there's room for that. but suppose that 25% of all electricity generators are near water falls, it's as easy for them. okay? but 75% it's impossible and they'll all go out of business and we'll have no electricity. imagine that were so. could the e.p.a. under their current theory take account of that? >> well, i guess the answer, you want to say is no. but they say yes they can. what about this 12% rule? how does that -- a little bit earlier in the statute it says the administrator may distinguish among classes, types, and sizes of sources. so if you really had this situation, you could say look. 75% of the generators in the united states have this really old technology and they'll all go out of business and e.p.a. can say, but it's a different class. okay? i mean, if that were really true. so don't they have, through that provision, and the 12%, and the next one, the ability to

take into account at least serious cost problems? >> assuming they have the ability to take into account -- >> say yes or no. do they yes or no? >> no. >> no they don't. why not? >> the reason that costs are not directly relevant to the first one is what i was explaining with the 12%. in other words as you, the example you gave shows that some might be able to have the lower cost effective approach just because they're near a waterfall. so relying on the fact that 12% were able to meet this. >> i wanted the answer to this. my point was if in the imaginary situation that i've 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. suppose that were the situation. you, i guess, could go to e.p.a. and say, create of that

second group a separate class. a separate type. for that's the reason it's so expensive. and, therefore, the 12% doesn't apply to them. because they were in a separate class. now, my question is, can you legally make that argument? when they will take it into account? that that's what i want a yes or no answer to. >> i think the answer might be, yes in the future. but now we can't do it because -- my point is -- >> you're saying yes in the future. let's go now to this case and say do you make this argument? >> i don't believe either side has made that argument. >> has the agency made this argument? >> the agency has not -- >> we're going to take cost into account. we're going to use this provision justice breyer discovered and that's what we're going to do. is that the how the agency issued its rule? i never heard of this. >> no. >> wait.

>> because i still want to know a fact. i want to know the fact, and you are familiar with this record, is did anyone on your side of the issue ask the agency to take costs into account, brutally, roughly, crudely, or did they all say, we want a cost benefit analysis? i would like your characterization of the record on that point. because reading what they said it's about cost benefit analysis, that paragraph. so that gave me the idea that maybe everyone interested in costs asked for a cost benefit analysis. >> i think the answer is that we asked them to consider costs. we thought a cost benefit analysis is the ordinary way a reasoned agency decision making

happens after some vague sense of what the costs are but by doing an analysis and they said, their entire position here, is that we don't need to do that because costs are irrelevant. >> if i understand what happens, listing and standards are the only thing you can generally appeal from. it is really a final agency action when the -- when the standards are issued. the thought it was the issuance of the standards that the government sometimes breaks up the sources and the amount of emissions each type of source that justice breyer is talking about can have. so i think the listing is just of a broad category because we've had plenty of cases in this court where we've looked at the agency saying, this type of

source meets these standards. that type meets another standard. isn't that the way it works? >> that highlights why they're not treating this as a separate listing vs. regulatory decision. they did both at the exact same time the same time they made the necessary and appropriate standard they also promulgated the emission standards. that shows it isn't a typical listing standard. >> they are subject to minimum standards aren't they? >> correct. >> once they're listed minimum standards apply, right? the agency could have discretion whether to lift the standards further but the minimums apply right? >> that is the agency position that we must -- my time is up. >> thank you, mr. lindstrom. mr. brownlee? >> mr. chief justice, may it please the court, i would like to make three points to supplement my colleague's argument first regarding the nature of power plant regulation under the clean air act second the language of subsection 1 a and for the broader context. to begin power plants are the

most regulated source category under the clean air act both before 1990 and after the 1990 amendments. so the court has talked about some of the programs. it is not only the -- the best retrofit technology, and a variety of other controlled programs both control in their quality. >> i would think that cuts the other way. that every other significant industry in the united states is subject to this program except for electric power plants. >> your honor, what it shows is that for the other industries e.p.a. estimated in 2010 that for all other industries this would impose compliance costs about $840 million. all of these other power plants would impose compliance costs, e.p.a. estimated in 2011 of $10.4 billion.

>> this single regulation now on air toxics imposes annual costs of $9.6 billion and what does one get for it? the three standards in issue here, i think this is important to understand some of the questions that have been asked. there's a regulation for mercury, for nonmercury metals and a regulation for acid gases. most of the costs here, the majority of about $5 billion annually are associated with the acid gas regulation, which the agency has concluded present no public health risk, no public health concern. the agency said that our modeling has consistently showed that power plant related exposures are at least an order of magnitude below the conservatively determined safe level. now in the title four program congress addressed the certification potential and record deductions of 9 million tons a year at about a cost of one to $1.4 billion. the acid gas program is

projected to result in reductions of acid gases about 40,000 to 50,000 tons per year at a cost of $5 billion. what that background shows, your honor, is that when -- why congress treated power plants differently. it asked whether it is inappropriate to impose further regulation of a specific type, whether appropriate to impose regulation under this section on the most aggressively regulated industry under the clean air act. now, what -- >> can i take you back to justice breyer's first question? the first question was about the way these categories were. and how the categories enable the e.p.a. to mitigate certain onerous costs on certain segments of the industry. it's not an unknown provision of any kind. him and indeed, it seems to me that the provision very much cuts against your argument because e.p.a. in some ways can't even figure out the costs until it

links those category decisions but the aggregate costs not just within each category but the aggregate costs obviously depend on how e.p.a. categorizes and sub categorizes. so you would have the e.p.a. make the cost calculation before it really can, given the structure of the statute. >> your honor, the cost does factor into a variety of determinations that are made as part of the regulatory process. what an e.p.a. issued its notice of regulatory finding in december of 2010, it said, this is nonfinal. e.p.a. confirmed again and this is at page 555 a of the petitioner's appendix that the, there is no final n1a determination or listing and we are going to take comment on that as part of the rule making to examine section 7412 d emissions standards. so as part of that the agency addresses, issues related to

level of control, sub category and at the end of the rule making comes out with a regulation that has certain characteristics and consequences. here this regulation, what n1a says is in light of the study addressed whether such regulation under the section is appropriate and necessary for power plants. now, it may be necessary to regulate something like mercury if there's a public health risk and that's the only pollutant for which e.p.a. has calculated a quantifiable public health risk. but that may not be the appropriate regulatory regime if as e.p.a. has explained here their view of the statute is not to focus on whether such regulation is appropriate but whether listing of power plants under subsection c is appropriate just like every other source. >> can i ask whether that listing is, and the minimum standards that that imposes are subject to

the categorizeation device justice breyer was asking about? could the agency have said well, they're going to put these into categories and because it is too expensive for certain 80% of power plants that don't have waterfalls nearby we're going to exempt them from these minimum standards, can it do that? >> no, your honor, not at the listing stage but once the source category is listed at the standard setting stage they could consider sub categorizeation in order -- >> to reduce below the minimums? >> not below the minimums, your honor is perfectly right. >> that's what i thought. >> the minimums depend on the categories and the sub categories. you can categorize in such a way that the minimums would be up here or you can categorize in such a way that the minimums will be down there. >> and during the rule making, your honor, arguments were made about sub categorizeation and e.p.a. ultimately sub

categorized the power industry with respect to one limited set of sources lignite sources with respect to the mercury standard. otherwise e.p.a.'s position is once listed, it triggers an obligation to issue emission standards. >> so this is an obligation as to some standard but again the minimum standard can vary dramatically depending on how the categories and sub categories are set up and because the minimum standard can vary dramatically so, too, will costs vary dramatically. so you're having the epa consider costs before they can know what the cost are? >> if i can respond to that. the epa doesn't know the costs as it takes the notice of with respect to the emission standard. section 76 07 lists clean air is

one of the omissions. this is why the agency explained that there is no final at the end of the process. they'd then determine what the costs are. justice sotomayor: further to >> confirming what justice breyer said, as you had an opportunity and apparently had taken advantage of it to tell the epa it should sub categorized this source and decided to sub categorized just one piece of it, so what you're really telling us it is not the listing. it is the way they set up their emissions standards i disagree with, because they could have decided there were some categories that did not require a standard at all. i am presuming they could have said anybody by the water --

they are part of the 12%. they would have to do more. they want to do cost by everyone else who is not by the water. >> conceptually, your honor, i imagine they could have sub categorized the entire industry, but that is not what they did in this rulemaking and with respect to certain of the regulations -- justice sotomayor: but what you're asking us -- this is a challenge to a regulation that is only piecemeal. you are arguing that they should have considered cost, but they obviously did before they issued the standards. you can't look at the standards and the commission -- emissions in a case like this in isolation. >> if i could try to answer the question once again. i note that the study looks at

alternative control strategies. the agency determines that such determination is necessary, so the focus is on the regulation that they decide to address with the remaining public health hazard -- identified from this source category. x did the -- >> did the epa say we are not going to take costs into account at the listing stage because we will take it into account as congress -- >> no, they did not. is it true that 50% of the industry will use gross the medic -- rose thomistic product,

etc., but it sounds like even if that sounds through they would not have taken it into account. so, they say the epa does not determine -- do you see the problem? for me, they are saying, don't worry. maybe they should have written knowing what we know and what is undisputed so far, we do not think that the cost problem is big enough for us to warrant a cost-benefit analysis or other consideration. ok. then we take it into account. so, there is no problem if it is within reason. but they didn't, so that is why i am looking to see -- is there really a different way that they could eliminate this horrible scenario, if it existed, which it didn't?

do you see what i am driving at? i am trying to get your best answer on that. >> i want to emphasize this is not an argument whether or not to regulate mercury, which is an identified public health risk. there is a regime defined which the government says is the listing under all of these other categories and the minimum control standards is the right way to do it. with regard to it being sub categorized, it will have tremendous impacts as far as gas regulation. for a pollutant that represents no public health risks. chief justice roberts: we cannot uphold an agency ruling on --

hold the agency on -- >> correct. chief justice roberts: so, it is it true that it was not in the below? >> that is correct, your honor. my understanding is it is costs are irrelevant. whether they should regulate the source category under the subsection 7412 regime that applies to different -- >> the agency at that point in time was only answering the very first question. the very threshold issue. the threshold issue. at that point, the agency said the costs were irrelevant. they become relevant later in the analysis, in a variety of ways, through the 12.5%, through the categorization, the sub categorization, so cost, cost, later, but as to this particular thing, the agency said, yes,

here we do not consider cost. we could, but we do not want to because there is all of this potential for costs to come in afterward. mr. brownell: your honor, it is cost, cost, cost and having -- under the statutory criteria that congress set. and then having to apply those standards at the end of the process. it makes one determination and light of the costs and impacts and other factors. justice kennedy: do you think when the word appropriate is used, it requires a cost-benefit analysis in any context? mr.brownell: your honor, in any

context that is so broad. i do not think i can say. but in this context, that regulation has certain characteristics and consequences we have talked about this morning, including the fact that it opposes on a pollutant that has no public health risk. >> this is something we should be concerned about because there is this regulatory impact assessment that is the benefit -- that is an impact through the process. they have appropriately calculated. >> the co-benefits -- all of those benefits -- are

co-benefits. those co-benefits that are in the regulatory impact analysis were not considered as part of the regulatory determination for good reason. their legal importance and relevance under the proper standards. what i mean your honor is 2.5 is the pollutant. that is extensively regulated under the air quality standards. those were only recently revised. the agency found that the level of exposure for the code benefits did not produce effects because they are too uncertain. >> thank you, counsel. >> mr. chief justice, may it please the court.

the epa interpretation should be there for three basic reasons. it is the most natural and most permissible of the tax. it does not mention costs. second, it harmonizes the provision of section 7412 because it applies the same regulatory logic to power plants that congress directly applied to regulate hazards from every other type of source. based on health and environmental factors alone. third, as a matter of common sense and sound government praxis, it was appropriate for epa to list our plans for a regulation based solely on health and environmental hazards. that reflects the approach congress chose in all of the major regulatory programs under the clean air act. >> you're forced -- your first

point. a key -- epa could have considered this. >> i think they read the best interpretation of the statute that it did not provide consideration for the cost at the listing stage. >> appropriately and necessary allows us to consider cost. >> under chevron, the epa will explain the justification for its reading of the statute. >> because you are dealing with the term as appropriate. you could have issued a regulation allowing the consideration of costs as appropriate. you are saying the agency deliberately tied its hands. we will issue a rule saying we cannot consider something that

we could consider otherwise. next i think the best way to think about this is that the agency decided it was appropriate to approach the question in the same manner that congress found it was not only appropriate, but mandated. >> i think it is unusual for an agency to say that they want to do something, but it is the only thing that they can do. they like to maintain for themselves as much discretion as they can. to say they were prohibited from considering costs under the phrase appropriate strikes me as unusual. >> i do not think so, mr. chief justice. it said we are not going to consider costs at the listing stage. >> i thought they use the phrase

appropriate and necessary, but not allowed to consider costs. that goes to the question of whether power plant should be listed for regulation under action 7412. that would kick in the regulatory mechanism. >> i had the same question. could this agency reasonably have considered costs at stage one? >> i do not think the tests forbids them from considering the cost. they determined that the best reading was that power plants because of the study required they are no differently situated than any other source of hazardous air pollutants regulated under section 7412. for every other source of hazardous air pollutants congress mandated as appropriate was that you do not consider cost when you can side to

regulate. he set the omission standard. >> how is that consistent with this dutch authorities scheme? if your argument is that the only reason for doing this is that they wanted power plants to be treated as the same as other sources. >> i agree with the justice that congress approved different treatment. that does not answer the question. that just asks the question. the petitioners say that power plants have to bear a lot of cost that other services do not have to bear, in particular the title for program. with the text of the statute says is, regulation will proceed

immediately. for power plants there was uncertainty. whether the acid rain regulations would solve the problem. >> what congress told the epa to do was study those three things. once the epa had made a judgment about that, it was deciding whether to list what was appropriate and necessary. >> this is what i do not understand. congress pushed decision to treat powerplants differently reflects the idea that they want the idea that powerplants will not be listed, even if they're in emissions exceeded the levels from other sources. i do not see another reason why they would treat it differently. you may disagree with that. that seems to me that that is a

necessary inference from the statutory scheme. if that is the case, what factor might congress have fought allowing powerplants to emit more than what would be permitted if they were other sources. petitioners have an explanation -- costs. powerplants have do there a lot of costs that other sources do not have to bear. their emissions might exceed the otherwise permissible limit because they have participated in the trade program. they have contributed to the reduction and emissions in that way -- a way that would not be reflected in their own emissions. that is an explanation. costs are what are missing. i do not know what your explanation is. >> i cannot accept the premise. both of the tax -- texts tell

you what congress left open. the argument you're on or just posted was not in the history or the text. if congress really fought back then with a would have said to epa was, they can push the pause button. take the three years and study. study the cost problem. they would have told epa to study cost. they did not do that. >> if they were only concerned about health, with a not have imposed the same standards that are imposed on the area sources. if so, list. >> i think they came very close to that. they told epa to make the judgment after considering the results of the study. they told epa to study things that went to health hazards. that comes very close.

the reason they use the appropriate and necessary language is because congress, when it was legislating in 1990, understood there might well be uncertainty at the end of this analysis. there might be uncertainty about the projected fx of the acid rain regulations. >> i do not think that is what the regulations of history said. >> the way the acid rain regulations -- they were put in place in 1990 as the same time as 7412. there was five years and until the first stage and then there were five more years until the second stage. epa would have to make a long-term projection. i think what congress was saying was, you may have to exercise your judgment. epa did exercise its judgment. >> there are two parts to this argument.

if your answer. the second, which i think your argument depends on, there is a way to take into account cost. if, in fact -- $9 billion is a lot of money. if you divide it by the population, you have $30 a person. a family of four has $120. that is a lot of money for some people. if you say, you cannot take it into account ever. it begins to look in little bit irrational. to say, i am not taking it to dust taking it into account at all. they will take it into account when they set standards. at that point, i read the thing about the 12%. i have the word similar source. that referred me back to the categories nation.

then i have, aside from that. here is what you do. when you are regulating you look at the top 12 generators. that is the minimum standard. they might want to say hey that is not right. it is right. it says it. if you go to the bottom 50 generator, it will not go up to $120 per family, it will cost a thousand dollars per family. we have epa saying, we will not look at that. at that point, i begin to say oh my goodness. why? why will you not look at it? the answer seems to be in the similar source and in the classes and subclasses. whether such an argument, may be the epa can say, do not worry if there is such an argument -- which there is not. we have the power here under the statute to take it into account.

now, you know or that argument came from? from the discussion and thought in my chambers. maybe it came out of the brace as well. is what i say correct? can epa take that into account? or do they just blindly say, if that is the top 12, that is for everyone, regardless of because. that is the argument. >> got it. i can make three points in response to it. the first one goes to the empirical situation. i will get to the theoretical question. the first one is. 930 is a big number. this is an industry with $360 billion a year in revenue. what congress and epa concluded --

>> can you talk about profit? >> cost is about 2.5% of revenue. the ra -- the epa concluded that it can go off-line as a result of being uneconomic. as soon as you -- >> as soon as you said that, they took cost into account. >> lemmie talk about how epa under this regime, does take it into account. the first thing i would point out is, the 12% rule, the kind your honor discussed in your concurrent opinions, is it is that kind of a rule. in the normal case, it will not have that effect. this percentage of the industry has been able to meet this without an economic matter. congress is trying to force the rest of the industry to catch up. as we know from the pole

experiences, -- from various experiences, the very great tendency to overestimate costs happens. section 74 which is the provision that governs a listing of categories, it mentions the availability of subcategories. the last sentence -- >> it is 35a and this is c1 and it talks about the epa's authority. nothing limits the authority to establish subcategories as appropriate. >> duties