Were giving them Broad Authority here. Is there anything that cuts on your side you see as opposed to the other side of reading this language . One think i can cite and that is that the statutory history in this case is that the predecessor version to what we commonly have before us simply said that states were required to prohibit the amounts which prevent attainment or maintenance. Just prevent. Looking at that language theres nothing in there that suggests costs can be taken into account. What Congress Said when it added the words significantly contribute to nonattainment and interfere with maintenance is because it addressed cassation of bad air quality effects and it was shot fro duesing cost but relaxing the causation standard, saying shouldnt be Something Like butfor. Its enough it contributes significantly to nonatapement. Mr. Keisler, you have a statute that does not have any language about no costs allowed. That also does not have what the American TruckingAssociation Statute had are which was week Public Health only sufficient margin of safety. What you have is exactly what you said. You have a statute that focuses on causal contribution. Right . So, this is a hard problem. Right . Because let me just sort of give you a a numerical example. Let say that the standard is 100. And theres a state that has 120. And there are two states, x and y, that have each contributed 20. Right . So, we only need 20 of those. We have 40. And the question is, how do you get from those 40 to those 20 . The d. C. Circuit would just say, we take ten from each. But if the question is only about contribution and that all the statute talks about there, has to be other ways we can make that determination of what contribution each should be legally responsible for. Right . And what the epa said here was, were going to distinguish between states that have put a lot of technology and a lot of money into this already, and on the other hand states that have lots of cheap and dirty emission, and why isnt that perfectly rational thing to do under this very statute . Well, first of all, i think in the example that your honor gave with the two states and should they be russed to ten. The reason in favor of doing that from a stat tower perspective, that gives a consistent application to the same causal language in the statute, which means that the same causal effect is significant itself comes from indiana but signaturent when it comes from tennessee. State we see that fitting much moore securely within the statutory language than the kind of shifting that your honor mentioned. One can imagine since the policy rational behind your questions are legitimate, someone can imagine a statute that says ignore the fact there are state boundary. Think about the most efficient way to force reductions, locate those reductions in the least cost areas and impose that on the state. Surely if congress intended that it wouldnt have written a statute to order each state you battle mr. Stewarts point, that congress surely didnt intent to shut down these plants if they didnt, or couldnt, feasibly reduce their contributions. Yes, your honor so if they cant fees fees apply do ill, wasnt the word contribute have to take into account some way the cost of reducing the amount . Your honor, im here on behalf of industry and labor so we believe there have to be mechanisms to deal will those problems. We dont think they come out of defining the amount of significantly to containment. Those considerations come into play elsewhere in the process. In the American Trucking case thats been referred to, to the court said when states are implementing the requirements of the epa for example, by deciding to allocate among different sources how the reduction will be distributed, they can take costs into combat. And there are other when the definition of what contributes is translated into an Emission Reduction allocation, and then the state says this is how much we have to reduce but costs have to be taken into account. That a very different matter from saying that epa in defining what amount significant he contributeses the same thing. The reason its not just were locating in a Different Box what epa wants to do. The box were locating it in makes clear it functions as the kind of break your honor described, unfeasible or they found a way to do that with the cost tradeoff with the cap and trade system. Because the industry can make that choice, with the state, presumably. The trading presentses unique issues. We support trading anywhere at it appropriate. But this is a statute of providing relief to downwind states and if indiana is emitting into delware that hurts air quality, it does no good for delware if indiana purchases allowances from tennessee which isnt contributing. You want me to right look what i would have to write to make it specific. Two units floats over the air from the cow state and two units from the sheep state. If we treat them alike were going to tell the cow state, your unit is the same as the sheep states unit, both make the same significant contribution, and we have to say that, even if, for you to remit your unit, causes death and destruction, destroys your economy, and i have to write those words to accept your argument. Wouldnt i . Id like to resist the roll your honor has the bringer of death and destruction and starvation. Then you will either have to draw ademption distinction,. When you get down to the level of implementing these things you cant take into account whether death and destruction when the state is doing that as part of the process, but doesnt pear on how the amount of significant contribution is defined because when epa takes into account can its woking the other way. At it saying that even though a causation standard only would require you to reduce this much, we, the epa, can shift to you an additional burden because we think another state hard they say thats not a theoretical possibility. Why isnt this taken care of in the process that permits individual states to challenge this . Let me make a distinction. What the government says is a theoretical possibility is simply whether a state would be trench below the one percent threshold. What im sagos back toity scalias first question, which is, even apart from the one threshold, every time, a locating on the basis of cost and allocating on what each state contributes, youre shifting the burden around. Youre saying significant must mean only measurable amounts. It cant mean pick your word culpability, feesability. One state finds it quite feasible to reduce emissions be a factor of ten. The other state, Justice Breyers example, finds it cant do it at factor of 100. Cant you say that the contribution in one case is more significant than the other, based on feasibility . I dont think so. I dont think that is a proper definition of significant when at it modifying contribution. Isnt contribution to nonattainment. Its the word amounts the statute prohibits activity from within a state from emitting any air pollutant in amounts which will contribute significantly. We agree. Amounts are amounts. But the word significantly doesnt have a judgmental component. I think thats what the government is going to say. Its not a limitless i dont think significantly means that any factor that might be relevant in a broad policy sense can be imported in. When you have a statute here that talks about amounts that contribute to nonattainment or interfere with maintenance. So theres an ambiguity here. You add the word amounts to significantly and i think that Justice Scalias point might be he knows better than i an amount is an amount. Thats my point exactly. And then the response is, well, not always, because you say, an amount youre talking about a specific amount coming out of the state and is the one the cow one as significant at the sheep one . And thats i think were i think you have hit the nail as to what the issue is. I guess our position is significant may have a range of meanings but not a limitless range. One court said the fact that yellow is am osgood doesnt mean it can mean purple. Here we dont think the range of meanings accommodate the governments definition. The nature of this problem is that it theres an allocation issue. Its not just everybody gets down to a certain threshold level. Theres a level and we have to allocate, and the question is, what are we going to allocate on the basis of . The word amounts done tell you what youre going to allocate on the basis of. We can just divide, you know, and do it all proportinally. We can take into account per capita, a states population, or we can take into account, as the epa did here, cost. On the understanding that costs renext how much of an investment a state has already made in pollution technology. The neither the word amount or anything else saying in about the different methods of allocation. I disagree with that. I dont focus exclusively on the word amount or significantly. Its the entire phrase. I think ten out of ten people who w. In this courtroom and had not read the Clean Air Act, theyre talking about what the effects emissions in one state have on the other. I dont think this is anymore ambiguous in referring to air Quality Standard than the standard in American Trucking talking about health and safety as a standard. It supplies a content for the epa. What is your answer do you have an answer to mr. Stewarts basketball hypothetical . I thought that was pretty good. What the coach what significantly contributed to the loss, hell talk about the missed layup rather than the missed desperation throw. Each would count for two points, assuming it was within their [laughter] very hard for me to translate the amount concept into performance on the basketball court, but mr. Stewarts other example was a contribution to a charity, and i certainly would accept the notion that if bill gates and i each contribute 100 to a charity, ive made the more significant contribution, but thats because were using contribution in that context to moon something else. Were using it to mean donate or give. Not talking about cause sawings. The basketball thing is to make it parallel to what is at issue here, the question should you should ask the coach, which of the you lost 101 to 100. Which of the 101 points contributed most to your loss . [laughter] i assume the answer is that some done. The one that was the layup. He would not answer, the one that was the layup. He would say, what do you mean . All 101. If there were different teams playing in the league and you had an overall result, you could actually determine which team had contributed what to the overall result, and when were dealing with states, were dealing with groups that the statute cob send to allizes aspirate teams which are entitled to be treated separately. Id like to make one other point. My white lightes on. We have raised a separate argument which is independent of how the Court Decides epa made define the amount that contributes significantly, whether cost or air quality effects or anything else. And that is that however at it defined epa cannot regulate beyond the point necessary to achieve attainment and maintenance in downwind locations and here, prior to Good Neighbor rule making,ed examined the iand avoid overkill. Here it didnt do that. Apart from the costs versus air quality, we had evidence that showed epa could achieve attainment at lower levels of regulations and epas response to that was, they werent going to look at lower levels of regulation because at lower levels of regulation, some sources and some states might cease operating existing controls. That all they said. If sources in some states could cease operating controls and as the comments say you would still achieve maintenance in all the downwind locations theyre linked to, the epa has no provision to require those sources to use their existing control. And the epa in this particular proceeding said nothing else, gave no other reason for refusing to act on the evidence that commonalitiers submitted that lower levels of regular laying at most upwind states would achieve maintenance at downwind locations and had no authority to regulate beyond the point necessary to achieve atapement and maintenance. If the court has no further questions. Thank you, counsel. Mr. Stewart you have four minutes remaining. Thank you, mr. Chief justice. We cited the restatement as it bears on the command law of nuisance, and as this court indicated in American Electric power, if the Clean Air Act had not been enhe canned the remedy of downwind states would be federal common law nuisance state against polluters, and there are three lessons to draw from that fact. The first is that, as the breaths argument indicates, judicial resolution of some a suit would have been a herculean task, and the process of doing that judicially choo reinforce the wisdom of Congress Choice to replace that mechanism with the Clean Air Act, and counsel is in agreement with the deference to the agency that. The second is that as the reply brief citation to the law of nuisance indicates, the Common Law Court would have been able to consider the costs necessary to achieve reduction in pollution upwind in deciding whether a particular remedy would be appropriate or how much of a reduction an upwind polluter should have to make, and theres no reason, absent extraordinarily clear statutory language to deny epa the same authority. The third thing is, as the analogy to the common lawsuit indicates, there are sovereign state interests on both sides of the case. This is not a matter of epa versus the states. Its a matter of epa trying to act as an honest broker between the upwind and downwind states. The Clean Air Act as a whole is replete with references to Economic Activity and harnessing the profit motive. Both the states and epa are specifically authorized to provide for the trading of allowances. The whole purpose of which is to achieve Emission Reductions in the most Cost Effective manner possible, and i think its worth noting in this regard that although we talked about the transport rule as regulating the emissions of states, what were really regulating is emissions of power plants within the states and the Good Neighbor provision itself talks about preventing significant contribution from emission sources or emissions activity within the state. One of the things the epa said in proposed rulemaking was that in some circumstances the cumulative downwind impact of a particular upwind state might be great not because any particular power plan was poorly regulated or emitting at a high level but because there were so many power plants in the same state, and one consequence of forbidding the epa to consider costs is a particular power plant in an upwind state might be required to install more expensive pollution control measures and make greater reductions simply because they happen to be located in a state with a lot of other power plants. The last thing i would say is, this is the statute, as i said before, has a prospective focus, implemented by state officials, and if you ask how would a state official assure herself or feel confident her own state plan was satisfying Good Neighbor obligations when she wasnt sure what other states mooing be doing. One way is that a state official said, if everybody else did what im doing, i can feel confident that the problem would be solved. And that really the approach that epa used. It examined certain cost thresholds and said, at particular cost thresh holds we feel confident if everyone, downwind and downwind alike, makes pollution control efforts at these levels, the problem will be solved or almost sold but a because there would be residual nonattain. It seems rational to say the significant contribution is the amount over and above what would occur if everyone adhered to an approach which, if applied across the board, would solve the problem. Thank you. Thank you, counsel. The case is submitted. I know you give me grief from time to time but we wok around the clock trying to help you do your job. What other administration would make thousands of internal memos and documents available for your daily enjoyment. This is a representative sample. You all have them all tomorrow. Heres a memo from harold to leon panetta. Maxwell house coffee is on sale this week for 3. 49. Heres one, for 10,000 you can have a private meeting with Vice President gore to discuss reinventing government, and for 20,000, you dont have to go. Rosy odonnell was the president s first choice to be here this evening, and she withdrew, citing a nasty and brutal con femurration process. Confirmation process. [applause] i wasnt even the second choice. Dennis miller was the second choice but he got hung out by an illegal nanny technicality. But isnt that what the confirmation process is all about here in washington . Weeding out the truly qualified to get to the truly available. Watch this years white house constants dinner life saturday night. President obama and joe mchale of numbers Community Headline the event. Our coverage starts at 6 00 p. M. Eastern with the red carpet arrival followed by the dinner, live, saturday night, on cspan2. Senator ron johnson of wisconsin has filed a lawsuit against the Obama Administration over the Affordable Care kaz kas subsidies for members of congress and their staff. We discussed the case with senator johnson on todays washington journal. Its 40 minutes. Were back with senator ron johnson, republican, wisconsin, sits on the Budget Committee and has begun a lawsuit against the Obama Administration for the Affordable Care act, 38 other g. O. P. Lawmakers signed on. I want to talk about that. But you are in the Foreign Relations committee as well so lets start with ukraine and this latest round of satisfactions. Is it enough . Guest probably not but sanction