mr. lindstrom: the question is -- justice sotomayor: it does say. mr. lindstrom: what happens is you have a listing decision at the first stage and then you have the standard -- justice sotomayor: you're taking out the categorizations. they do not establish the floor, so they have categorized. mr. lindstrom: correct. my point is what happens under n1, these first two steps are merged. you are looking not at the list, but whether such regulation is appropriate and necessary. that is the language in the statute. is such regulation appropriate and necessary? not just if it is going to be listed. if it is going to happen. they made this at the same time. they publish the standards. they were looking at the costs ahead -- justice scalia: are you saying that they purported to make the categorization decision without taking into account cost? mr. lindstrom: yes, any categorization they have done has been done and they did not consider cost. justice scalia: did not consider cost. mr. lindstrom: this turns on what the agency actually did below. they have made det

mr. lindstrom? >> mr.ief 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 deter

mr. lindstrom: i do not know how they did it, but they said throughout we are not considering cost. thank you, your honor. >>>> the court today ruled by the weapon for that the epa must consider cost before deciding whether regulation is appropriate and necessary. over the next couple hours, we will continue with what happened at the supreme court. this is the last day of the term. in the next case the justices vision will allow oklahoma to continue to use the drug and its lethal injection protocol and later, a ruling that says arizona can use a commission to dropped federal congressional districts. -- draft federal congressional districts. usa today writes a fiercely divided supreme court refused to limit state use of a controversial execution method that the centers compared to being burned at the stake. the majority said oklahoma prisoners challenging the use of a free drug cartel filled to prove it cannot mask excessive pain and identify a better alternative. all four liberal justices dissented vehemently with two of them writing that capital punishment is probably unconstitutio