Thresholds based on its ongoing assessment of the costs and benefits. May i ask about your interpretation of the phrase there are a lot of different interpretations that have gone on. Here is some choices. I want to ask you to pick what you are arguing for. Your original position was that any pollutant meant that was your original position. Judge kavanaughs position is it means any max pollutant. Any naaqs pollutant. Theres another position that says it is really any regulated pollutant other than Greenhouse Gases. Those are four different interpretations. I guess i am asking you which one you are arguing for. I am here on behalf of the private party petitioners. We have two arguments. The principal one of is the one i would like to focus on. And that is because and that is where i would choose an option the pst program is focused on omissions that have specific impacts. And not globally undifferentiated phenomena. I take it that the sort of ozone pollutants are not area specific. Would your interpretation at who does . Trucks if the epa could not make an if the epa could not make a regulatory finding can i ask a followup . That to me is the quintessential ambiguity and a statute where we give deference to the agency. If your side cannot even come to one interpretation, why shouldnt we defer to the agency . The deference is always subject to reasonable interpretations. All it says as i understand it other than that you review there are too many people it is regulating is that we cannot implement it immediately. It hasnt said with streamlining and other adjustments, it cannot do this. It just as we cant do it right away. I would like to roof explain a deeper problem and then address why it is the only correct interpretation. Kenley clarify whether you agree with the dissenting can we clarify whether you agree with the dissenting judges on the d c circuit . Youve got a footnote saying there are a lot of differences. Your reply beef brief turns 180 degrees from that. I understand that having six opening briefs is that the most helpful way to present our position. There are two arguments. Our principal argument, and the one i would like to focus on, is that Greenhouse Gases are not included within the pst program. Psd program. That is the clause that they are not local. Yes. What you make of the endangerment finding that they have severe effects at the local level . They exacerbate groundlevel ozone and smog. Every effect that any environmental phenomena has will be felt in some local area. Our point is that is not the kind of measurable regionally affect that the psd statute refers to. It certainly not measurable. Before you do that, we have an outstanding question. The problem is not that the agency rewrote the threshold and said we would eventually try. When they say they want to get down to the apartment buildings and high schools, it is contravening congressional intent. I read them as saying they will try to do it, but make whatever it dungeons make whatever exemptions are necessary. Be exempt if they are talking about, in order to seal with the exemptions, are to have general permits by category. It clearly is not a matter of the epa saying, we cannot do it right away. We will do it eventually. If they did say that, they would be violating a statute in the worst ways. Do you really mean to say the only difference between Greenhouse Gases in the air pollutants that congress had in mind when it enacted the Clean Air Act is green hair house gases do not have a local effect . What about the quantity is greater and that is why there is a discrepancy between the thatcher tory threshold and the one that epa has . Between the statue a tory threshold and the one that the epa has . One is the one that your honor and Justice Sotomayor were referring to. Design for whether you rewrite the threshold or regulate down to the infinitesimal level, you are rewriting the threshold. Another is the requirement that this particular program be focused on these area specific airquality impacts. There are three central features of the psd statute that we think show that. The first is section 7471. Which is on page 1380. That is the 13a. That explains what psd refers to. 7470 one says the program consists of emissions limitations as may be necessary to prevent significant deterioration of air quality in each region. Airquality in each resident region regionally defined effects on the air people breathe. There are many statutes and the wrigley tory area where Congress Passes a statute in the regulatory area where Congress Passes a statute. It turns out there are so many often, i would think courts read in an exception. For example, if there were a statute that said you have to throw out all bubblegum that has been around for more than a month, what about bubblegum used in a display case that nobody intends to eat . We can say, it doesnt mean to apply to that. Why cant the epa do that as well . It doesnt make sense here, so we read in exception into it, unwritten. I dont know that there actually is a president that says the agency can do precisely what it did here. A precedent that says the agency can do precisely what it did here. I am a little confused. There have to be pollutants where it doesnt and that just 250. Email to just 250. Emit just 250. It in minutes emits one million. It cant be your view that the statute was written only to get to measurable pollutants that are at 250 or can be wrought below 250. Its not our position that the purpose of best Available Control Technology is to bring facilities below 250. Thats a minimum g hg something that is about that. It will never be brought below that. It is above that for millions of entities that congress intended to exempt. If i could followup on Justice Breyers question. You keep saying, epa is violating the specific term. The conundrum this case raises is everybody is violating a statutory term. Epa is saying we cant do the 250. It says any pollutant. Or each pollutant subject to regulation. Nobody would think that the most natural or reasonable readings are any pollutant if they have localized effects but not otherwise. What has happened here is you have this new kind of the Mission Emission that makes the terms of the statute you reconcile. Youre reconcilable. Irreconcilable. Why isnt that the more reasonable of the two things to do . We dont agree that those two dilemmas are equally situated. Certainly, 100 and 250 tons per year is a clear command. The question of how to interpret air pollutant one is a number, but the other each pollutant subject to regulation the epa has treated those phrases as meaning a single thing, which if you put aside the absurdity problem in this case, everybody would agree is the most reasonable interpretation. You are saying the epa should jump that interpretation because there is a new kind of chemical that makes the numbers not work. It goes much beyond the numbers. I think if anybody was looking at the psd statute in isolation without the benefit of massachusetts versus apa, versus epa, they would conclude it refers to pollutants that only have the area specific impact. It is also two other features of the statue which make it unambiguously clear. The first is section 7475 ee. That mandates the one an analysis that has to be conducted in every permit in process and the one Analysis Congress is required be available for public hearing. That is the analysis of the conditions at the site of the facility and each area that is going to be affected. Books we began the discussion by saying putting massachusetts versus epa to one side. I was in the dissent, but we still cant do that. [laughter] assume we are bound to by both the result and reasoning of that case. And also the American Electric versus connecticut case. What regulatory force, significance, do those cases have under your approach and that by the chamber of commerce in the blue brief . That might be consistent with the subject we opened. Let me turn to connecticut after doing massachusetts. The same day that massachusetts came out, this court decided Environmental Defense versus duke which decided even when a defined term is construed a particular way, it doesnt mean the same term can be construed differently where context requires. That is why massachusetts, after indeed holding that the definition of pollutant included Greenhouse Gases, didnt go there stop there. It asked whether applying it to the title ii provisions on Motor Vehicles would yield extreme measures or counterintuitive results. Only then did they direct the epa to apply the definition. They understood that the literal definition of pollutant was sufficiently broad that it should not be applied without some additional analysis of the context of the provisions. What else does it cover other than the mobile vehicles . There are multiple places where it appears in the act. They have interpreted the words, any air pollutant to mean any subset of the pollutants that this definition that is because the section that it is in is a different definition directly. That is not correct. In the pstn title v provisions, the epa has interpreted that to mean any regulated pollutants. Same thing with the provision on disability. Your answer is they can be treated differently under different parts of the act. It was an act of interpretation in epa versus massachusetts. Reading that decision as a whole, what did the court give to that interpretation . If it werent the case that that was an additional part of the inquiry that was necessary. What else . Aside from psd. It excludes the new Source Performance Standards program of section 111. This case is not about whether the epa can regulate Greenhouse Gases from stationary sources. This is about whether state and local permitting authorities, the 90 plus authorities, are supposed to regulate plant by plant under this particular psd program. I mentioned the nsp is program the nsps program. Nsps does not have the thresholds. It lets the epa decide what categories of sources are most contributing. It doesnt require the analysis of subsection e, which the epa has told authorities not to conduct because it cannot be done for greenhouse. Greenhouse gases. It permits the epa to do this, a National Uniform emission standard. Rather than asking 90 state and local permitting authorities to decide plant by plant what they think each plant in their jurisdiction should do about in your opinion, is it 7411 . You are saying they could use 7411 to get to the same place they are today. They are doing it, your honor. That i dont know what this case is about. Can they do the same thing under one provision or the other. It is not exactly the same thing. It is the difference tween having the epa between letting the epa have national omissions standards and then the plants can versus this commandandcontrol psd system. Where each authority thinks has to decide which mechanisms to use. It says such standards with such modifications as he deems appropriate. That is the language. If this is the right program, why couldnt they copy it word for word into the rules and just put a different section number at the bottom . I know youd have a preferred way to do it, but if a disagree with you and they think this is the perfect program, why cant they do it . The statutory language and structure of the psd program does not encompass these kinds of pollutants that have globally dispersed results and not area specific impacts. For the reasons i have indicated. 74 71, which says the significant prevention of significant deterioration is focused on each reason. Region. The fact that this was assigned to 90 state and local permitting authorities. You were going to discuss not just the massachusetts case, but the followon case. Connecticut. The only point to make about that is that is the case that held that the epa has authority under section 111 to a dress Greenhouse Gases without having to what is it is trying to do here. It has to do it through national omissions standards. Connecticut did not approve the psd provisions here. The other thing you are going to get you only got to 74 lebanese. 7411 e . Prevention of significant deterioration. The only required study as of local conditions. This is a sign assigned to 90 state and local agencies. For global problem like global warming, we think state and local authority should make the decisions rather than epa. Youre reading would say that the agency was not permitted to make a criteria in naaqs. If they had tried to establish naaqs for Greenhouse Gases, that would be contrary to the statures standards. Those are all about regional standards. If the gas goes up to the atmosphere and met since is mixed there, it doesnt work. Take another five minutes in we can and we can begin by answering the question. The government the first point in their brief is that Greenhouse Gases can be regulated with respect to sources that are already covered by psd. That position does not advocate your concern about the broad reach of epa regulation, does it . I think it does your honor. While that might deal with the specific issue of rewriting the thresholds, the fact that the psd provisions for the reasons i have indicated is limited to air quality impacts would be violated merely i applying vest available best available controller technology. They would not only be applying that with respect to sources that are already required to operate under psd permits. Thats right. I would see your honor, that while they have tried to separate those issues out, theres one issue about who has to get up permits any other issue is about the best Available Control Technology. What theyve done is say the words subject to regulation shall only apply to Greenhouse Gases if youre committing them at levels of hundred thousand tons per more. They rewrote the permit provision that says who has to get a permit and they rewrote the best Available Control Technology. Im not sure how much time i have. [laughter] if i could then turn briefly to the second argument. An argument if not, we have a second narrow argument. Which it dresses the requirements for triggering the psd statute. Our opinion is very much like judge kavanaugh. It is only triggered by major amounts of a pollutant. That is not judge kavanaughs position. His position is naaqs. We are focused on the language of any area to which this part applies. It is because parts see applies not part c place to some areas and not others. Can i ask why judge kavanaughs argument has been left by the wayside. We get that with a slightly different result. It comes from different statutory language. I think notwithstanding that there is some overlap between the arguments, the legal rationales are entirely different. I am curious. This is the argument we made below. The point i dont think that answers the question. I know that is the argument. Are you saying you cannot defend his argument . It is just that it has been hard enough to make two alternative arguments in the form. Forum. [laughter] can we have the next criteria. For 30 years it has been adding things. What about all those . Fax your honor, it is true that since 1980 although it propose our interpretation as its original interpretation, epa has said any pollutant would be sufficient to trigger permit requirements. That has had virtually no practical effect. All the other pollutants, we have only been able to find two or three exceptions over 30 years, invariably they are also committing one of the criteria pollutants. This made no difference until greenhouse pollutants came on the scene. Thank you, counsel. General mitchell. Mr. Chief justice, and may it please the court. There are two issues in this case. The first is that the term air pollutant cannot be given even after the ruling in massachusetts that it includes all things airborne for purposes of title to. Title two. The unambiguous statutory requirements of those programs are incompatible with regulation of Greenhouse Gases. The epa thinks it can fix this problem by imposing in age and she created regime and agency created regime. Congress does not establish round holes for square pegs. And agency cannot make a whole square by rewriting language. The language you are referring to is the references to 100250. It seems to me that is an odd term to drive such an port and interpretation such an important interpretation. Those were about the size of the facility. They were not supposed to have they were not supposed to make any distinctions as to the type of pollutant. Youre essentially using those numbers to make distinctions as to the type of pollutant rather than it seems to me a more sensible approach would be to say the numbers dont work for this new kind of pollutant. We will up the numbers. That will leave the rest of the statute and all the purposes of congress intact. The reason we think youd we dont think this approach is permissible is because there are provisions in the Clean Air Act. 7661a says epa and cannot exempt any source. Because that is in the statute, epa cannot be claiming to seek discretion when congress has held that kind of discretion. That is akin to dispensing program power. The question to ask is whether the term air pollutants flexible enough to accommodate. Eta epa agrees it can mean different things. Massachusetts said that air polluted includes anything airborne. But epa has refused to carry over that definition. One of them is part of the sps program. Nsps program. Epa does not interpret that to mean all things airborne. It doesnt even interpret it to mean all regulated pollutants. The psd and title v the mean any regulated air pollutant. Finally, they interpret the phrase any pollutant to mean any visibility impairing pollutant. If this is forced to be apply to every provision of the Clean Air Act, all the epa interpretations would have to be discarded. If you think about the definition, you are saying what does any air pollutant mean . Does it mean what epa has said it means for 30 years . Or does it mean something more along what along the lines of what you are saying . You would obviously choose epas version of the thing. The only reason you are not choosing that is because of these numbers that are in the statute which were designed only or does it mean some