Transcripts For CSPAN Justices Hear Case On EPA Power To Regulate Power Plant Emissions 20240707

impact climate change. >> we will hear argument this morning in case 201530 west virginia versus the environmental protection agency and the consolidated cases. >> mr. chief justice, may it please the court in section 111 of the clean air act, congress directed epa to partner with the state to regulate a sourced specific level, which means identifying measures with -- measures particular buildings can take to reduce their own emissions. the d.c. circuit avp eight much -- gave the epa much broader power. power to reshape the nation's energy sector or any other industry for that matter just which sources to exist at all in setting standards to make it happen. no tools of statutory construction support that result. first, electricity generation is a pervasive and essential aspect of modern life and squarely within the states traditional. epa cannot regulate in ways that cost billions of dollars affects thousands of businesses and are designed to address issue with worldwide effect. this is a major policymaking power under any definition. and the responders argue epa can resolve these questions much clearly forbidden, goes back worthless congress authorized section 11 does not direct. congress is not done so here. second the words congress did use in the context replace them in section 111 traditional. together kate statutory terms, like the requirement standard before individual sources and focus on their performance so that congress did not greenlight the transformative power. and finally, stanek is no reason to avoid the merit pay were injured by a judgment that brings back to life a rule that hurts us and hits off the books or rules that benefit us. the argument their burden to show epa voluntary station and stay are not in the case they are not. we are asking for the classic appellate relief of doing undue with the court plugs at this court has full power to give it. the issues at stake confirm it should. in contrast, epa's important but environmentally focused role, congress and the state are able to weigh all of the competing factors and constituencies in play. the lower court was wrong to short-circuit the process here in the court should reverse pretty welcome the questions. >> you start your argument with a major questioned document. do you need that to win? >> we do not your honor. we think the text is clear the court can use any of the tools of statutory construction. i can focus on the particular words in context but major questions and the federal are also textual tools of construction of the court can and should use that as well precook so is the difference between clear statement and major question? >> so there are multiple versions of the clear statement candidacy questions is one of them the different version of the clearest statements. the clear statement part simply says what we assume would be in the statutes how clear congress would speak before courts are willing to find the agency power the major question is one version. >> what factors would be take -- taking into account to determine which approach we would use? >> i think it's important to look at what the constitutional norms in question are. cannons like major questions are grounded in separation of power if grounded in common sense presumptions about how legislators would operate we expect congress to put in the statues. when this court deals with major questions its focus on the nature of the power. here because there is transformative power that crosses industries and goes outside of epa core competency. this is the area where this court has been willing to apply the major questions before we argue it should do so here. >> i think i was just trying to get a little bit more specific. what is it about this case that suggests we should use one or the other? >> certainly. the power epa was claiming and the power plant is one example of that power. the power d.c. circuit gave it no further would be a new and transformative variety of agency power that is a major policy question. and so that is the sort of thing that courts are not willing to assume congress implicitly delegated those sort of questions. >> so does the statute, the text of a statute change of the because the problem is a big problem? >> no, your honor, the amount of the text of the statute change the clear statement is it looks at the words we would expect to be in the statue but certainly if the statute clearly allows this power. we are not asking the court to ignore that because we would say that actually satisfies the clear statement. >> thank you. >> i just want to follow up a little bit because i'm not quite clear what your position is. the major question stock you categorize a variety of the clear statement document question. >> it would, your honor, the major question doctrine is satisfied and there's a clear statement in the statute that congress in fact intended to give the power to the agency. >> some of the briefs talk about it, i don't know what with the right word is, informed by constitutional questions non- delegation or delegation. is that part of your submission or not? >> we have ordered non-delegation a constitutional canon. if it's right appropriately thought a delegation problem but we do recognize their significant overlap between major questions and nondelegation. they both get at the same constitutional norms of separation of powers about congress what it would not be presumed to delegate to an agency. non-delegation is asking different question of can congress delegate in hazard given sufficient guidance. major questions asked in the threshold question did congress delegate? here no matter what the issue is on nondelegation congress is not actually delegating. >> one problem that i have, is there is a word in the statute which i think is important. it talks about assistance. so epa has to have a system for existing plans. so, what is that system? i tend to agree with you that normally if you interpret the word system so that it totally 100% changes the opposites economic system of the united states it's hard to believe congress delegated that. but you want to jump from there to the idea it has to be plan by plan. now, at that point i think gee, it is easy for me too think of a system that they might choose epa that is not by plan by plan or within the fence. but, is not really a big deal. you want one? i mean it used to be years ago you had under the pjm system you have computers they still do they turn on. they turn on the electricity plants least cost or the cost of the day. so many companies put in time of day metering and so it is cheaper if you get your electricity at night. and so epa might say hey when you are doing that pjm, this is the computer for about 100 plans , when you do that add a sense to your presumed cost to reflect the fact is coal-based or subtract a cent it's lng-based and subtract two cents if it solar based. that is not a big deal. if you think 2 cents is a big deal let's make it a quarter. ok? and so there we are. i have something that's fairly minor, congress might well have delegated and it is not within the fence. so i got your basic point but it does not lead it seems to me your basic conclusion. >> if i can add to that point the source specific inside outside the fence shorthand that itself is not the major question here. that is the limit congress put in the statute. if you remove that limit, that is what shows how major the power at stake here is. because once that limit is gone, ep is not limited to something like two cents or quarter. >> not at all part you can use your system. what was the case i wrote all about it the court actually adopted it. look at the individual delegation. and you say well do we really believe on the basis of a number of factors not just whether it's a big deal, that congress would have delegated this power to this agency. this is what joses do, so let them do it. >> it is certainly true the justices of the court looks to major factors in the cases have looked at those. but again this is not simply the matter of a particular exercise agency power in this here for that is not how it's preceded look at the brown and williamson case for instance this court was faced with a particular tobacco marketing rule. but when determining whether it's a major question the court looked at how far the theory as statutory cases. >> i think what justice breyer is suggesting is that works against you rather than for you. in other words inside the fence reform to be very small or it can be catastrophic. inside the fence there are inside the fence technological fixes that could drive the entire coal industry out of business tomorrow. and outside the fence rule could be very small, or it could be very large. so the rule you are saying sort of emerges from the statute which is inside the fence outside the fence rule bears no necessary relationship to whether a rule is major in your sense of expensive, costly, destructive to the coal industry. it just bears no necessary relationship to that at all. >> your honor, i don't think that is true. there are limits congress put in the statute they make sense with the source specific. epa has the systems that are achievable we do it she removal admissions reductions that are adequately demonstrated those make sense for source specific requirement for they don't make sense epa regulated at a nationwide level. epa says we want to reduce coal plant significantly, of course i would always be achievable in the sense to reduce emissions for the actual limits congress written statutes don't make sense without all of the words congress put in which this is a statute that's focused on one particular source could do to make their own operations more environmentally efficient. >> council, i want to go back to a version of what justice keegan and justice breyer are asking which is, when i look at the epa as a whole, i see congress using very specific terminology. whether it's looking at an existing source, and technology for that source. a number of division says very clearly in existing source that has installed the best available control technology. that very much inside the fence. an existing source that has installed the best available technology. best in at least two provisions. but here, we have something much broader and very different words that say the best system. and does not use at the source, only for the state but not on the definition of what the epa has to do. so how do i give meaning to this -- those two different words? and then secondly, assuming that answer, massachusetts versus epa says that carbon dioxide is a pollutant under the clean air act. that's correct, right? >> that is correct. >> you are not challenging to question not challenging connecticut where it says congress clearly delegated to the epa the discretion about whether and how to regulate carbon dioxide, correct? >> we are not disputing the portion to whether and how per we are disputing how it means epa can do that. i understand what you are saying. this is really a step further than anything we have said before. all of our other cases, whether it is regulation of tobacco, or regulation of evictions under major questions doctrines have not addressed the how. now were going to the how. you want us to look at the how. justice kagan said inside the fence line requirements themselves can lead to generations shifting, because some of those could be so expensive that they fourth-generation shifting. -- force generations shifting. so if that's the case, how do we define this major question? it can't be that what congress has chosen might lead in or out the fence because there is some out of fence activities that don't necessarily lead to generation shifts system changing. biomass, which the rule precluded, requires certain plants to burn wood. and so that won't force generation shifting. so tease out for me more precisely what this major question doctrine involves? i cannot see it being in and out for the reasons justice kagan said and for the ones i just pointed to. so go back to two things, how do we give meaning to the different use of words in the statute, and to comment tease out for me what's a major question. >> certainly. thinking about how we look at giving meaning to those words? systems is a broad word we do not dispute that. this court always reads as a whole it does not look at isolated words and get them. in the decision which also interpreted the clean air act before is very clearly particular words meet a narrow work context focus interpretation. for look at the rest of the words in the statute before. >> there is a use limit there. it says best emission reduction. >> i don't read the word limit there. your honor, reduction is different than elimination bring out congress knows the difference between that because in section 112 right next to one 11th congress did use the term limited and prohibit this gives a different meaning to the word too. >> i wish there was regulations that would eliminate harmful carbon dioxide but even this one might eliminate it from some sources. but this regulation does not eliminate those admissions generally. >> a d.c. circuit interpretation of the statute does not give epa any place where it has to stop. it puts handcuffs on the clean power plant does not mean it is the next rule. >> it does give a place to stop. the statute says you have to consider costs and other various other factors. this is not a regulate to the end of the world kind of statute. it very clearly says there are other constraints that have to be considered to impose reasonable limits. >> i agree with you but if epa is looking at the grid wide level in dealing with an issue is massive climate change is hard to see would cause would not be justified much of the cost limit is not serving as a limiting factor if you take away the source specific limitations of the rest of the words in this statutes can clearly put. >> one argument we have not addressed yet and i want to make sure we do before your time expires is the question of standing. the general makes a strong argument that states are not harmed here because under the current state of affairs there is no rule in place and how could you be better off with the rule in place? >> can i that question? >> a relative article three question is whether the injury traceable to the judgment where the court can address that. the effect of the judgment is a clean power plant appeal is unwound so that rule could come back to life. that certainly enters the state -- injures the state even though nationwide the initial have largely been meant for the clean power plant 20 states and not met them there is no real question they're not injured. anything that happens after words temporary stay of voluntary cessation response is not met their heavy burden to show it's impossible to grant any relief at certain will not be harmed in the future. >> thank you, counsel. we will get to you in a moment. justice thomas, anything further? justice breyer? justice sotomayor? >> how is this any different than epa versus brown? they're the epa announced it was planning to modify regulation that have been challenged. the government asked like you are asking, that we offer guidance to the epa with various points in your brief you talk about guidance for the ruling that's taking effect. we strongly said that would be the advisory opinion. the government has disavowed and we said regulations coming, how are you different from the epa, number one. and number two, i am not sure how the ace rule which is also what has been put on hold but waiting for the new world. the new rule will supersede both. >> we do not know epa will do. >> that is absolutely true. >> that's the standard the court uses. with voluntary cessation the next rules entirely in the control of respondent, this court say the kate is not moot unless it's certain pre- this is not it moved question this is an advisory opinion question that is how the epa discussed the requests of course your honor that case will look towards the prudential factor think it's important to know it is your 15 for this court to rule on the merits of agency cases when rulemaking is ongoing even further in this case. we can look to the water's united states cases 2019 decision and national association of manufacturers. there the agency was even further along here, there been to proposed rules the court still seceded to give an answer on the merits. i think the potential factors are very similar here. that is another area where the administration agency was waffling on the decision evolved and the court found this was not a mootness question. they said the parties did not argument in good reason. i think the same prudential factors weigh strongly here. these are clean legal issues and the states need certainty. there is no jurisdictional bar the court has given the answer and there are very strong principles why it should. >> how does it change the advisory opinion? >> is not an advisory opinion because the court can still give us the relief of undoing the actual judgment. the clean power plan repeal would be final and the world would come back. your honor asked about how the a's will would help us? that is a will that is respectful of the limits congress wrote to the statute that is highly deferential. even if epa wrote later to change the world they would have to have additional burden of accounting for the factors that would lines to be harder for them to make change. they showed us to matter what epa may do at some point in the fact that the court can and should give us relief today based on the particular rule before us. >> justice kagan? >> you are responding to justice breyer's insistence that it is a broad rule saying there are other phrases in the statute that point to another way. i think you might have been interrupted, it might've been me. i think what you were going to say is the point of the phrase standard for performance of any existing source. is that right? >> that is surely one of them. >> the big one? >> we also think section 11181 has particular textual based as well. >> on the absence of you telling me what they are, the existing source applies to d1 and not one d1. that would suggest that a state even if it wished you could not do what this world does, is that right? >> we do agree the states are limited in setting the stage or performance of the same way the epa is limited when it sets emission reduction. >> isn't that sort of odd, this is supposed to be this cooperative federalist system and states are supposed to have a lot of flexibility and if the state decides this is what we want to do, we think it is not very costly, you are reading it too bad. >> there are two reasons why that is not a problem for federalism and state flexibility. states always retain inherent expression to state plans. if a state or group of states wants to have a training program they can do that. i think the second reason, it is a false argument to state more options for epa leads to more options for the state and the clean power plan shows that is true. it is an aggressive system with that said there were options for the state but there were not. it states could not have other options other than generation shifting and reduced but and the extremely aggressive measures epa set in place. this idea for getting epa more flexibility helps states is not true. it is important to give meaning to the actual tailoring congress put in 111d which of the states have the limitations from epa they're able to tailor that to particular sources based on remaining useful life and other sorts factors. that's written out of the statute anything as a system and apply at this level. >> can ask a different question. this major question doctrine, how big is a question have to be or how do you know when it is big enough? >> i think this court has certainly applied it in different ways. there are two lenses we can look at. it is enough within that particular industry with statute operations which talk about which particular telecom companies are subject to ratemaking or not that may not be as massive economy wide scale. but have a major step change in that statute the court found appropriate. we can also look at the broader economics and social conflicts. >> do you look at those now? i would think of this is a rule of statutory construction, and i would think that whether or not it actually is any kind of constitutional links that the question would be what the congress at the time thought and what the circumstances at the time were. it seems to me quite irrelevant to rules of statutory construction under the theories that this court as most frequently used in recent years about if we look around the world today we see this particular rule as a big impact. >> i do not think that is true your honor. we look at the words of congress in 1970 or 1990 put into the clean air act. we have clear statement cannons court looks at commonsense assumptions. if congress was in fact going to give broad delegation to allow epa to make decisions such as whether to engage in nation wide systems, how far to go and how to do it. i think this commonsense assumptions are true for all congresses. and again what this court is doing is looking at the actual words congress put in. >> the actual words unfortunately for your position says system. which suggests that what congress wanted to do, understanding this was an area that was going to move very fast, has lots of technical components to it that it wanted to give the agency flexibility to regulate as times change, as circumstances change, as economic impacts change. all things they could not possibly have known at the time. >> i think that is true that flexibility is important in the system of course congress expected and hoped technology and practices were change, the did not just say this was a system. it also talked about the standard of performance. it also talked about something that could be applied. even in the clean power plan at that point the agency recognized that the context terms like application achievable meant limited measures that could be incremental by the source. it read to find source to mean owner and operator. the agency i do not believe is trying to justify that statutory sleight-of-hand here but it once you get away from the restriction that application mean something the source can do. >> thank you, general. >> justice court just -- gorsuch? justice kavanaugh? >> what happens to this case if epa issues a new rule before we decide this case? >> i think it would depend what the new rule is but if there's a final rule issued the state very likely would be moved the coalition i represent to dismiss the challenge after the route was in fact adopted. that would not necessarily be the result. i think the city objectionable cases helpful for us on that point. that involved an ordinance repealed by the time it made it to the court and the ordinance at been replaced by something that was different and since -- in some significant ways. the court found that the challenge was not moot because it injured the parties both fundamentally the same way. if there is a new rule based on the same legal error that the states in the same light would not necessarily be removed. we do believe the final rule would be different here where a year after the gc circuit court decision we still don't even have a notice -- statements when the administration suggest our rules would only make the injury worse. >> justice barrett? >> general, what's the daylight between the major doctrine of the delegation doctrine? at the beginning of your argument you talked about how the major questions doctrine could be understood as inspired by the separation of powers, and you talked about avoidance and nondelegation. the idea is that congress should not delegate major questions to an agency. is there any daylight between them? >> i think certainly that is a broad view of the nondelegation doctrine. it is not necessary for the court to go that far to say whether congress could delegate these questions. i think the daylight between the two is this question of has congress purported to delegate? the major statement is getting at that question, what did congress think it was doing? what did congress actually do with the words in the statute. it would be a separate question if congress said clearly epa to make a fort and exercise a transformative power. that might be a separate nondelegation question. >> let me push you a little better on what you mean by clear statement. are you using the phrase clear statement to mean and other words we would expect congress use the clear statement because one way to be commonsense for one to say something like this very clearly and precisely. >> we assumed this was the sort of issue congress went into itself. if congress is not going to handle major policymaking it would directed to the agency. >> when you say clear statement can in you are using it synonymously with a linguistic canon? >> it is similar. if you mean by linguistics a text make contacts. we are not asking the court to change the statute. it is whether what is the tactic we would expect congress to put their. this particular class of cases congress filing is ambiguous that does not need power. >> how does this work? i have thought just one way of looking at, we have a whole u.s. code filled with delegations to different agencies. and many of those words are fairly technical. but if you're asking a question, when the agency does something, when congress that passed all of those words really have intended that agency to have the power to do this thing under those words which does not say so explicitly, right? there are many, many things that might argue for or against that. it is an interstitial matter. it is a minor matter having to do with administration they are more familiar with. is it something that's going to change the whole united states of america? that cuts the other way. but a question is how do we, in the face of silence determine what congress would have wanted to delegate including this or not. and a different question, if congress did, is it specific enough to pass non- delegation as a nondelegation requirement ? those are two very different questions. >> they are, of course, your honor. >> so how do you see it? >> i think on this first question we look at how do we know we look at the language used is the interpretation the agency advance in something that would lead to extraordinary authority. in the words of gonzales the court looks at the breath of authority. simple answer here about what congress actually meant that we could look at 1990, which is the last time the clean air act was amended. congress made particular changes to 111 but also make changes to the other portions of the statute specifically in trading and cap in trade language. it is inflammation standards and acid rain. we know congress was thinking about cap in trade measures at the exact time it made at 111 and did not put those words in there. i think going to the second question assuming congress did, we would have to look at the non-questions. i think the way that the court is lifted through the intelligible principle, that is how we are arguing it here under constitutional avoidance. we think the limits congress put in the statute makes sense. those limits have no meaning to them if epa is able to regulate at any level it once to. even under that existing framework there were to serious nondelegation questions. and of course there would be a separate question we would be inclined to revisit in a future case whether or not congress could delegate that. congress does not need to reach that questionnaire because it did not reach that power. >> thank you, counsel. >> mr. chief justice, please the court. on our reading of section 111d the epa's power is impounded one. it takes an existing pollution source and asked what emissions rate is achievable for that source? respondents, however, went to divorce the epa's best system of emission reduction from the particular sources being regulated. that would allow the agency to effectively dictate not only the technical details of how a coal plant operates, but also the big picture policy of how the nation generates electricity. what is the right mix of energy sources for the nation? and for that matter also, how the nation uses its electricity. the same would go for it every other carbon emitting industry. that immense authority cannot be reconciled with the statutory text and structure let alone with the major question doctrine. with that i welcome the court's questions. >> could you give us a walk through the statutory language that makes the distinction you are talking about? >> yes, absolutely just astana's -- justice thomas. the key language is talks about establishing standards of performance for any existing source. think virtually every word in that phrase confirms our interpretation but we are looking at a source. we are asking how can better perform from the end admission standpoint will existing. respondents' interpretation does not go with any of those words because the source does not have to continue to perform or exist. the very idea of the standard of performance that confirms we need to be looking at measures that the source can take to do better from an emission standpoint. >> there is quite a bit of talk of outside the fence and inside the fence. i do not know how you can draw such clean distinctions. it would seem that some of the activity you might think is source based is also outside the fence. how do you make those distinctions? >> justice, i think it is shorthand that is not exactly precise. the way i like to think about it is, is this a measure that would reduce the emissions rate from this source's operations? if it is, it is within the scope of the statute. >> it would seem as though epa could regulate the source and away that actually requires change, for example, in the mix of energy generation. that for example the cost of running a facility is so high that you begin to change your generation sources say from coal to natural gas or natural gas to solar. >> your honor, there actually -- absolutely could be interdental effects of a regulation that is a valid regulation that had the effect of causing some generation shifting. that is not what we are objecting to hear. there could always be interdental effects of regulation. our objection is the epa's objective, the whole design of the clean power plan and meeting of the statute is that the agency can include in that system measures that are calling on the plant to operate less or not at all. >> what is the difference if you can do it indirectly or directly? is it at the same result? epa does not have to say we are doing this for the purpose of wiring you to change your generation, energy generation makes. but by regulating the facility, it can cause you to do that to yourself. what is the difference? >> one can result in a standard of performance the way we think of that term, and one cannot. if there is a way for the source to comply, i am going to change by technology, change my work practices, i will do these things that will cause my operations to emit less than they otherwise would. then it is a standard of her -- standard of performance. if you choose to do something else, if you choose to decide this is not economical anymore, i will shut down, that is an incidental byproduct. it is different from the epa saying our goal here is not by making the plant work better. it is by not using the plant at all. >> given the way the grid works this distinction between incidental and not incidental is not convincing. the way the grid works, it prefers cheaper methods. epa could come out with a role that is plant by plant but make school plans hugely more expensive. epa could do it faster. the result would be that the grid would choose less of its product. you can say that is incidental but it is a necessary 1-1 relationship. it will happen. there is no difference going back to to justice thomas' point, inside the fence, outside the fence, it is going to have the same result. >> the difference is in terms of what the statute is asking the agency to do and having the agency perform that task. if they say the best way to reduce emissions from the plant is to buy this scrubber and install this scrubber and that will increase because there will be some effect to that, but the reason we are doing this is because the best system for this plan is to get this scrubber. >> epa has said it is all generation shifting, but this system is actually going to cost less for everybody than if we did something like what you are talking about. so why shouldn't epa have that ability? why shouldn't the state of that ability? >> epa does not at that ability because that is not with the statute is designed to do. the statute is designed to set performance standards for sources necessarily focused on how well the plan is going to perform. >> the administrator shall prescribe regulations with cell -- which shall establish procedures. which establishes standards of performance that include systems for any existing source which would apply such existing. so what we do is say what i said before. we are talking about the computer which is underground somewhere in new jersey where it used to be. i don't know where it is now, somewhere underground in boston. and to control several states and it is going to affect the prices of what comes on when faster of sources all over the place. what are these words here. it prevents them from doing that and has nothing to do with a fence. >> i don't think that could be called a standard of performance for any existing source because on that hypothetical, your honor -- >> it happens to have a time of day and meter. >> none of the sources are doing better from an emission standpoint. >> yes they are. regardless, what in the language year says that that does not apply to existing sources? do you like any fish at all? if you like any fish, namely every fish in the world, then you also like salmon, which is any fish. here we have a rule because it applies to pjm online, outside the fence. of course it affects and thereby applies to all the plants that have time of day metering, which is less a 50% of those in the united states. >> justice breyer, if i understand the hypothetical, i don't think any plant on that hypothetical is emitting less other than by virtue of operating less. >> a different machine of generating is put online. it is number three that comes after one instead of number two. >> so the regulated source is just operating less, it is not operating better. >> where better? >> it is a standard of performance. we give you an example. we talk about standards of performance all the time when we talk about fuel performance, standards for cars. when we use that phrase what we mean is i can get 30 miles per gallon, we do not mean i could take the bus or sale. you are using less fuel that way. it is a standard of performance. we could shut down the coal plant and it will emit less but it is not performing better. >> the problem i have with your argument is that you are looking at systems as involving just the one plant, but the entire structure of the apa if you look at 7410, you look at, ok, in looking at the structure of a plant, that very directly says that the state's plan can include incentives such as fees, marketable permits and options of emissions rights. so i look at that and that is all of the things that your state's petitioner's counsel says states cannot do. it is out of the fence. are you like her insane the states do not have the rights to do options or credit systems, etc.? in your brief it was very clear to me you said states have those inherent rights, and i look at 7410, and it is clear that the statute, all right. let's go back and then we will go back to what you are answering for justice breyer. the system cannot mean the reduction by one plant, because that is not going to meet the overall standard, which says we do not want to produce carbon monoxide or carbon dioxide in one plant. we want to reduce it across the system by 30%. and across the system may be that plant a is not going to reduce by 10% but it will go into the market and reduce by 5%, but someone else is going to reduce by 50%, and we are going to even out so the system, the ozone layer as 30% less, so assume that position. how can we say that it is part of this plan to limit part of the statute, to limit what the epa or the state is doing with respect to how to reach the best system reduction that can be reached? >> i think your question actually perfectly tee's up a distinction between 7410 and a 7411. i think they are fundamentally different types of provisions. section 7410 is getting to a certain level of pollutants in the ambient air, so if that is your goal, that is what the epa is trying to do, it makes perfect sense to make sure we will have the plan to trade and we went into this level in the air. 7411 is a different animal because it is focused on the source. >> doesn't 7411 say that the states are able to use procedures similar to that -- >> the tax says look at 7410. >> for the procedures, justice kagan. and if the state comes up with a plan and i agreed that they are similar in that respect, and the way they are designed, and of the goal of provisions that they are different types. one is focused on levels of the overall area, and one is making sure these words are separated the best way that the game. >> justice sotomayor is correct. the necessary consequence of your argument as it is with the general parts of his argument is that the states cannot do this either. >> i think there are two questions. the first question is how do we set the standard of performance, and in that sense absolutely the states are the same claim -- plain as the epa. i think there is a separate question, not an issue here, which is the state has the power over implementation and enforcement of the standards, and so you could have an argument that when it comes to compliance mistaken treat certain things as satisfying standards by looking at trading or beyond the defense measures. >> not if you're statutory interpretation is correct, you could not. you keep telling does -- us this is all but plant by plant by plant. >> i think that is how the standard gets set and it is a question of how the standard get satisfied. there is different statutory language that implements different cannons. i am not sticking out a firm position. i think there is room to argue about that because our concern is how the epa is setting the bar. we are not looking at how you were going to meet the bar. >> i would think the epa is setting the bar. that is far less regulatory then saying the state is going to meet the bar. one of the oddities in this case is the epa can say something it basically states can say we would like to do something else the epa is not directly regulatory when it stays this. >> that is right. it is setting the bar, the states are deciding not to get there and there is an argument they are entitled to give sources more flexibility, more ways of getting there. that is less regulatory because it is getting more flexibility. it is a different question not presented by this case. >> justice breyer? justice sotomayor? >> just one question. in the petition below you sought vacatur, and the cwa is no longer in effect. you got the ruling you wanted, that has been put on hold. how do you have standing? >> we ask or big picture because we took the position the epa could not regulate this at all, so we were asking for no role as opposed to the ace role. no role is better than the ace role. the decision below did not just vacate the ace role, it revived the clean power plant. the agency said we are going to -- >> it said that the cwa was vacated on an erroneous premise and sent it back for the government to figure out what it was doing. it said we had a new role. >> the judge set aside the ace role including the embedded repeal of the clean power plant, and to get agency is said we are going to update it. we have to change dates, figures. we obviously have a dispute about what the statute means it with the agency is allowed to do. >> thank you you, counsel. >> mr. roth, i will give you what i take to be the major questions doctrine is this course has stated that. this is my understanding of these cases, and i would like you to tell me whether you think i have the right or wrong understanding, if the right one, while you fit into it and if the wrong one, whatever. so my understanding is, there is ambiguity in the statute, that is the first condition. the second is that the agency has to stabbed far outside of what we think of as it appropriate lane. the fda regulating tobacco, that sort of thing. the fda regulates tobacco? that is the second. the third is, even though it is conceivable on the face of the position being most directly looked at, it wreaks havoc on other things in the statute. i would say is those three things that are the common points. do you agree with that? >> yes, your honor. i do generally agree with that. i think that certainly works for us in this case. i think there are stronger versions that a case might suggest but i think that version is perfectly consistent with what we might be arguing here. i do not think we need to major doctrine in this case. we fit directly within that. in our version of the statute to agency is solving an engineering problem. we have got the source, it is taking coal and turning it into electricity. we went to minimize emissions. it is a classic administrative technical type question that we expect the agency to answer. on the respondent's interpretation, the agency is asking questions like you to phase out the coal industry, should we build more solar farms in this country? should we restrict how consumers use electricity to bring down emissions. >> i feel like a bit of a broken record but i will bet this went back to. you can do that with the by source regulations. if that is what the epa wants to do i have a basket of source by source regulations that would allow them to get their way on all of those questions. it has no necessary relationship to this fence-non-fence we are thinking about things. >> i do not see it that way. if the agency is restricted within the fence and measures of the source to reduce its own emissions i think it is quite circumscribed. it could do things that are going to be as expensive and maybe there will be consequences and we may be having a different height about whether it is demonstrated under these factors, but it is a fundamentally different order of questions and order of inquiry that the agency is negation and i think when you get to that high level of how consumers should generate electricity, we've gone so far beyond what we expected to be doing and what they have done under this provision. >> just one question. i am not sure that you entered justice kagan when she was asking about the formulation of the major questions doctrine she described it in brown and williamson, the fda staying in its lane. the fda can regulate tobacco. if you think about the conviction moratorium, the cdc could regulate the landlord-tenant relationship. here we are thinking about regulating greenhouse gases. there is a match between the regulation and the agency's wheelhouse. so, you're describing something a little bit different than the justice was asking you and saying when you look at the scheme this is a big deal. how do we decide that, that is a difference between the subject regulation and what the agency does? >> i think it is a mismatch and pretty much the same way, because if you look at the power plant in that interpretation of the statute, at the agency is not regulating emissions. it is regulating industrial policy and energy policy that will have downstream emissions consequences. it is saying we can do the market differently in a way that we will not need you at all, and you will not have the emissions from the plant. that is taking it to a fundamentally different level in the same way brown and williamson. >> thank you. >> thank you, counsel. why don't we take a five minute break? >> mr. chief justice, may it please the court this case is not positionable and petitioners are wrong on the merits of any given. the d.c. circuit's judgment leaves no epa rule in effect. to get agency action challenge here was not the clean our plant . it was a decision to replace it with the ace role. the d.c. circuit judge vacated ace but chose not to reinstate. so no federal regulation will occur until the epa completes its upcoming rulemaking. petitioners cannot establish article three injury from the judgment. instead what they seek from this court's decision to constrain epa's authority in the upcoming making. that is the definition of an advisory opinion, which the court should decline to issue. if the court reaches the firm, no one for the use of the statute restricting states and power plants in the defense measure. that restriction is unprecedented and would disrupt an industry that is relied on measures by trading and leveraging to reduced the most cost-effective way. nor does it limit the defense of my measures and that a final fine -- and identifying the best line of emissions reductions. petitioners' claim that interpretation is necessary to prevent from structuring the entire industry or shutting down all plants. we agreed they cannot do these things but that is because the express constraints congress included in the statute among other things the system has to be adequately demonstrated and a reasonable cost. it can't threaten the reliability of the energy grid and it must be focused on cleaner energy production, not reducing overall levels of production. finally petitioners are wrong to say that it implicates a major question. for all their criticisms we know that it wouldn't have had major consequences. the industry achieved the limits decades ahead of schedule and in the absence of any federal regulation. given that reality petitioners ask the court to focus on the nature of the statute and the abstract, not on the effects of particular regulations. that is never how this court as looked at major questions and reinforces petitioners are seeking an advisory opinion. i welcomed the court's questions. >> would you kindly save more about your statement that the court did not -- the d.c. circuit judge did not reinstate ccp or ccp -- cpp? >> at the time this was in the circuit there was a live question about what this would be. when the d.c. circuit judge issued its judgment and vacated the role it did not reinstate ccp, and that was for good reason. there were three key facts that change on the ground that prompted the d.c. corporate -- d.c. court to determine that was the remedy here. it never altered the status quo the industry had very much undergone substantive changes, so the cpp was obsolete. the first fact i would point to is that epa make clear that if the eighth rule were invalid, it would go back to the drawing board and do a new rule different than what it is currently doing. it did not seek to bring new life into the cpp. justice thomas: i must be wrong. tell me i'm wrong. i thought that the agency, the epa, said we are getting rid of the cpp and the reason we are getting rid of it is because our interpretation of the law is ace. is that right? ms. prelogar: that's correct. >> and then they go to the circuit and say your interpretation is wrong. if ace is wrong and then you send it back to the epa, why isn't cpp back? because they've never had any good reason for getting rid of it? ms. prelogar: there is a well-developed body of administrative law that speaks to that and what the effect would be when a rule is invalid. it is not the case that the previous rule invariably springs back. it revolves on a case-by-case basis, and sometimes it is appropriate -- justice breyer: what did they say here? ms. prelogar: they notably did not put cpp back into effect. they only abandoned ace and made it clear -- justice breyer: in other words, they said epa, you're wrong about ace, but cpp is not back. if i don't agree with that -- i haven't really read it, and suppose i don't agree with you. i think, oh, god, they are going to send it back, cpp will come back and you are in the midst of a new rulemaking. how do you get rid of sisi -- of cpp? one, you have the power not to prosecute, a pretty broad power, but that's plant by plant. two, you have the power to suspend things for a good cause. you don't have to get rid of cpp via rulemaking because you can do it quickly through good cause. is there anything else? >> i want to resist the premise in the first place that the cpp could possibly come back into effect. among other things, all of the key compliance deadlines for the submission of the state plans have come and gone, so epa would need to do rulemaking regardless. justice breyer: i got that point. i just wonder, maybe i'm just curious about it. how can an agency get rid of a rule it doesn't want if it does not want to go through a big rulemaking in order to get rid of it because it wants to do something else? >> to the extent you put your finger on it, that's a good reason why the d.c. circuit judge not reinstate the cpp. i should emphasize no one was advocating to have the cpp put back into effect for all the facts that i identified for justice thomas. when we filed a motion for a partial stay, the other parties consented to that. we were on record making clear that if ace work and validated, epa was going to conduct a new rulemaking. that's exactly what it's doing, so no federal regulation is in place. >> before the d.c. circuit judge, ace was on the books and they liked it. after they rolled, ace was off the books and they don't like that. i don't understand why that's not the justiciable. >> it is true they liked the legal analysis in the ace rule, but the key thing to recognize here is that they are not actually harmed in an article iii cents from the absence of regulation. that's the lay of the land. the choice is -- will there be no euro regulation widely rulemaking is completed or is ace going to take effect? they cannot say that they have any concrete injury or harm from not having the regulation of ace, from not having to start working on state plans that are just going to become overtaken by events when epa completes that rulemaking. instead, they are focused on the effects of what's going to happen in the future. >> i gather their position would be just because there's no regulation does not mean we're happy. they would like regulation according to their particular perspective. they'd ike good regulation, which they think they had with ace, and on they don't have it. again, why isn't that a justiciable harm? >> nothing prevents them from regulating however they wish. if west virginia today wants to start regulating consistent with what ace contemplated, it can take whatever actions it wants to take with respect to the sources in its state. there's no impingement of its sovereign prerogatives. they have full authority to undertake whatever kind of regulation they like. they don't have injury from the absence of having a federal regulation in place that would impose additional regulatory burdens on them in the meantime. >> counsel see said that 20 states were not in compliance with cpp. what do we make of that? you said the industry has reached the limits, but 20 states have not. what do you make of that statement, and why is that fact not important? >> i think that's incorrect when you look at the analysis that epa conducted when it repealed the cpp, and in that regulatory impact analysis, what epa observed is that taking into account delayed and limitation, which would be necessary, and looking at the flexibilities that are offered by interstate trading, there would be no difference between a world where cpp took effect and one where it did not. effectively, there would be no cost of state to engage in trading to get to the requisite limit levels. for that reason, what the repeal's rule set is no cost savings to states from repealing this because it would not impose any burdens on them and also no further benefits with respect to further emissions reductions because we don't expect there would be any further emission reductions under the cpp itself. >> what's the status of the new rulemaking to the extent you can share? >> cpa is still undertaking activities and expects to issue rulemaking later this year. >> there are two questions i have. at least one brief, i think it might have been two, claims that the clean power plan placed more stringent emissions on existing plants than it did on new sources, which seems -- i don't understand how that makes sense. number two, what i'm troubled by is not generation shifting because, as very clear in the questioning, and i think by logic, there could be some changes that could force generation shifting anyway, so it is not generation shifting, but i think the major issue that might trouble me is the claim that the emissions standards that you've set force states to do generation shifting, that you have not given them options not to generation shift. you list out a whole bunch of options, but i thought one of their claims was that no matter what they did, they still had a generation shift. what is your answer to those questions? old and new plans and have you exceeded your authority by forcing the states out of choices? ms. prelogar: yes, and i will take those questions out of turn. it is trying to make an apples and oranges comparison. the standards operated differently and had different time frames. the new source standards took effect immediately, where under the cpp, existing sources would not have to put in place any kinds of emissions reductions until 2022 at the earliest or even 2023 in some cases. for the first seven years, both standards were contemplated to be in effect the new source standard was far more stringent because new sources were already subject to that emission reduction. the second thing i would point to is that even after the initial phase-in period, epa has a statutory obligation to revisit the new source standard every eight years to take account of any changed circumstances, so there was no guarantee that would remain unchanged and function as a less stringent standard as compared to the existing source standard. the cpp itself emphasized that there were other types of mechanisms. as a matter of on the ground realities, coal plants have used technology to admit levels below what the cpp contemplated. it is ron desantis standards have not been met through any other way than generation shifting. if i could speak to one final point, i do want to acknowledge that of course, epa recognized the source generation shifting that would be more cost-effective for them, but i don't think there is any anomaly between that kind of correspondence between the system emission reduction and how the source actually choose to comply because of course, part of the task is to see what is adequately germans -- demonstrated, with the power sector is doing to control emissions, and that is the starting point for identifying the best system, and they also have to look at cost. to the extent the epa is saying here is what the sector is doing to reduce emissions, it is not surprising to see they would continue to generation shift to satisfy that. >> the other theory i things aiming out of it is that congress knows how to do cap in trade. they did it with acid rain. there were bills pending in congress to do cap in trade for co2 emissions. ultimately those did not pass, and what happened is the executive branch, as executive branches are unhappy with the pace of what's going on in congress, tried to do a cap and change review through old and ill fitting regulation, so the cap and trade aspect i just want you to address and put that in context of your arg, squeezing it into an old statue that was not necessarily designed for something like this. >> i think the standard reliance is wholly misplaced. those bills look very different from the cpp's. it is not like congress considered something like this cpp and rejected it. said the bill would apply to far more industry participants, not just power plants, would have discovered far more pollutants, not just carbon dioxide. i think they would have relied on for rejected a similar type of argument. i do not think there is anything to glean from that record that would suggest congress had specifically contemplated and disapproved of the cpp itself. one final point is to emphasize that the cpp was not a national cap and trade scheme. epa exercised its goal of intermediate steps of announcing and mission limitation achievable but that then it was up to states to identify their role to identify standards of performance for their sources, and as i mentioned, nothing required that they actually use the system the epa had identified to any particular degree or even at all. >> do i take from your opening comments that you agree that there is such a thing as the major questions doctrine? >> i certainly agree the court has applied that interpretive principle, but not in a case that looks like this one -- >> ok, ok, right. how would you articulate what the major questions doctrine is? >> as i understand the way the court has applied this interpretive principle, it has at the outset always engaged in an interpretive exercise looking at the additional pool from text, context, and structure, and in cases like brown and williamson or a fiction moratorium, the court has said that if there were any doubts about what it has already articulated is the best interpretation of the statute, that ambiguity would be resolved by the fact that the particular agency action has sweeping consequences based on cost over the number of people involved or the type of authority claimed, and that's very different down the line from how petitioners are asking the court to rely on major questions here. first and foremost, there's no agency regulation to evaluate those kinds of effects. >> just getting back to what we are talking about, you go through the whole analysis and come up with what you think the right answer is and then you ask if that is consistent with the major questions doctrine. sounds like a rule of lenity. >> i think the court has applied it as additional confirmation of what it has understood to be the best interpretation of the statute based on conditional tools. >> i think there's some disagreement about how to apply it. why would you not look at it at the outset and say, as i think the court did in fda -- why is the fda deciding if cigarettes are illegal or not? and then that is something that you look at while you are reading the particular statute or whatever other things you look at when you are trying to interpret a statute and see if it is reasonable to suppose that ? just thinking back on alabama realtors and the osha vaccine case, i don't know how you would read those as not starting with the idea that this -- however you want to phrase it, this is kind of surprising that the cdc is, you know, regulating evictions and all that and look to see if there is something in there, i guess, that suggests that however surprise, that is still what we think that type of regulation was appropriate. >> i certainly do not dispute that the court in those cases had to look at the actual effects of agency regulation and found them to be surprising and incredibly consequential, but i do think it would not make sense to try to ask this as an abstract question at the outset because, among other things, we agree with have justice kagan to gilly to the principal. this is about filling in over directing what to do when there is ambiguity in a statute, so you cannot sensibly apply a major questions lens until you determine there is some ambiguity to resolve. >> i'm not sure i understand you when you describe it as an abstract inquiry. i don't know how abstract it is. it's just you look at it and asked why the cdc is regulating emissions. >> here i think it is not concrete at all because there's not any agency action for the court to review. instead, commissioners have pressed on the idea that the court should adopt not at all the dividing line between what kind of agency effects would be consequential or minor. you can imagine a future regulation that only uses biomass filing, for instance. that is a major question with vast economic and political significance. your average joe on the street probably has not even heard of it. i think it is particularly abstract here because there's no agency action to review. >> your argument is shifting back and forth between your mootness argument and your argument on the merits. after the mootness argument, have we ever held that the issuance of a stake in what case? >> i'm not aware of a president, but i want to be clear that we think the state just confirmed the d.c. circuit judge meant and did not fully instate the cpp. >> has the d.c. circuit judge that the reinstatement of the cpp is off the board? >> i think that is the only reasonable interpretation of this judgment, and this is one thing the parties had touched on in the briefing before the d.c. circuit judge it came up at the oral argument. no one was present to have cpp reinstated because it could not be applied now given that it has been overtaken by events. >> onto the merits argument of what you said before asked my question. the application of the major questions doctrine here would be very similar to the application of that doctrine in the tobacco case or in the eviction moratorium case because what your interpretation of the statute claims for epa is not a technical matter. it is not a question of how to reduce emissions from particular sources, but you are claiming that the interpretation gives you the authority to set industrial policy and energy policy and balance such things as jobs, economic impact, the potentially catastrophic effects of climate change as well as costs -- why is that not correct ? >> it is incorrect here, and i think it points out the problem with trying to interpret the statute outside the context of an actual agency regulation. although we agree with petitioners with respect to many of their hypotheticals, it is because of any number of other limits in the statute that there are implement i would love to go through if you are interested in hearing them, that we think interrupt their hypotheticals, and what is missing is this insight which we don't think tracks what would be major and what would not be and we think would place common sense and common sense limitations. >> the statute requires them to take into account -- not even balance, take into account several factors, and they are incommensurable. how do you balance or take into account -- what do you assign to the effects on climate change -- what weight you assigned to the effects of climate change, which some people believe is a matter of civilizational survival, and the cost, and the effect on jobs ? >> i think it is important to distinguish between that type of cost/benefit analysis, which epa will do in a regulatory impact analysis under executive inventory order, and the separate statutory constraints, which we think would not require that kind of balancing and very much constrained epa. first, epa has to determine that the standard is adequately demonstrated or the system is adequately demonstrated, and i think that answers the concern about epa just restructuring the industry and instead looks at what is already being done as the baseline. second, looking at cost, which means it cannot be of unreasonable cost on the industry that cannot be balanced away by saying there are unreasonable and -- unreasonable benefits. epa cannot take the type of substantial restructuring that would ultimately threaten access to electricity in the country, and then there are additional limits under the term emission reduction that we think would further guard against things like offsets or taxes are simply shutting down plants. epa cannot do these things because they would not qualify as a system of mission reduction. >> justice alito: i really don't see what the concrete limitations are in any of what you said. when you take in -- if you take the arguments about climate change seriously and this is a matter of survival, so long as the system that you devise doesn't mean that there isn't going to be -- there isn't going to be electricity, and so long as the costs are not absolutely crushing for the society, i don't know why epa can't go even a lot further than it did in the cpp. general prelogar: because the d.c. circuit, which has principally been responsible for looking at these types of actions, has interpreted those requirements to be real constraints here. and epa cannot undertake action that would threaten the industry with unreasonable costs. so i think this just underscores why it's -- it's problematic to try and think about exercises of authority in an abstract way without a currently applicable regulation before you to actually measure these kinds of things. justice alito: well, under your interpretation, is there any reason why epa couldn't force the adoption of a system for single-family homes that is similar to what it has done in -- what it is claiming it can do with respect to existing power plants? general prelogar: the limit on that is the fact that epa has never listed homes as a source category and couldn't do so because they are far too diverse and differentiated. you couldn't sensibly apply the statute to them because you wouldn't have an adequately demonstrated system that could be cost-effectively installed at each and every home given how different they are. and i would just emphasize, justice alito, that even their own example of homes, which is that -- an idea that epa would require the installation of solar panels on homes, that just shows the problem with their interpretation because that is a quintessential inside-the-fence-line measure. it's a technological solution at the home that reduces emissions at the home. so the -- the interpretation they're asking the court to adopt doesn't address those concerns. instead, it's the express constraints in the statute that we think prevent that. chief justice roberts: thank you, counsel. justice thomas? justice breyer? justice breyer: i -- i do have a quick question because i -- i think it's important to get this straight in my mind. the reason i thought that the cpp is alive and there, this is the reason: on page 37a of -- which has the opinion of the d.c. circuit, it says: "at the outset, the ace rule repealed the clean power act." okay? it explained it had to do that, the epa, because the statute made them do it. then i look to 161, where they say -- 161a, where they say what they did. they say the only permissible interpretation, that's what ace thinks, and -- but we cannot -- where a statute grants an agency discretion, but the agency erroneously believes it doesn't have it, we cannot uphold the result, correct, as an exercise of the discretion that the agency disavows. all right? got that? then they say: and the regulation must be declared invalid. okay, that's ace. that's ace they're talking about. we conclude that the epa fundamentally has misconceived the law such that its conclusion may not stand. its conclusion was to get rid of cpp. general prelogar: it's -- justice breyer: and then it says we hold the ace rule must be vacated and remanded to the epa so the agency may consider the question afresh in light of the ambiguity we see. so where is it it says that cpp doesn't exist? it says ace is wrong, we remand it for reconsideration. now you tell me what to read. general prelogar: so i think where we're maybe talking past each other, justice breyer, is that we think that the d.c. circuit would have -- would have had to expressly say and so the cpp comes back into effect. of course, we don't dispute one bit that the d.c. circuit vacated ace and therefore vacated the embedded repeal rule. but there is a body of precedent in the d.c. circuit about what you do when a rule is invalid and whether it automatically bring backs -- brings back the prior regulatory regime. justice breyer: so, when they say the ace rule must be vacated so that the agency may "consider the question afresh" -- general prelogar: exactly. so that goes back to the agency -- justice breyer: -- that means consider it afresh even though the rule that they're trying to get rid of is gone? general prelogar: that rule is gone. justice breyer: okay. fine. general prelogar: -- but they're not bringing back the old rule. justice breyer: now what do i read to make sure that's right? general prelogar: so i would point you to a memorandum that epa prepared after the d.c. circuit's judgment to provide guidance to regional -- justice breyer: do we have that here? general prelogar: -- administrators -- it's at ja 269. justice breyer: thank you. general prelogar: i would take a look at epa's analysis of that issue, and what epa said is it interpreted the judgment not to put cpp back into effect. justice breyer: okay. thank you. general prelogar: no one was advocating that result. justice breyer: thank you. done. done. if that does it, that does it. thank you. chief justice roberts: justice alito? justice sotomayor? justice kagan? justice kagan: general prelogar, the petitioners here say, well, you have "system" on your side, it's true, "system" is a big word, but we have on our side "standards of performance for any existing source." so why doesn't that tilt in their favor? general prelogar: so we certainly agree that a standard of performance for an existing source means that each individual source has to be held accountable for operating its plant in conformance with that standard. but where i think their interpretation breaks down is there is nothing in that language that says that each plant has to take identical action or the emissions reductions have to be achieved from each plant in an identical way. and if i could just use an example of a -- a trading scheme, which is commonplace in this sector, you can imagine a best system that involves a technological solution, like carbon capture and sequestration, paired with trading, and a plant can decide, well, it's cost-effective to put in the -- the carbon capture and storage, we'll do that, and, in fact, we'll reduce our emissions even below the limit and generate a credit. another plant that's differently situated and would incur far greater expense to put in the technology is going to be better off in the trading system to buy the credit. and the system is operating as intended. it is reducing emissions across the source category as a whole. it's just doing so in a very cost-effective way, which i think explains why the power plants by and large are on our side in this case. they want that kind of flexibility because this is business as usual for them. there's no apparent reason from that language, "standard of performance for an existing source," to think that congress instead said, no, rigidly, all of the plants have to put in the carbon capture and storage, even if that's going to be no greater emission reduction and come at far greater cost to them. so we just think that the terminology can't bear the weight that they would place on it. and if i could make one final point on all of this. that, of course, is language that governs what the states can do, and all the normal presumptions here, the federalism canon, major questions, i think, provides no basis to adopt their interpretation, which would narrowly constrain what states and sources can do for compliance. chief justice roberts: justice gorsuch? justice kavanaugh? justice kavanaugh: on major questions, i just want to repeat two things from uarg and if you would caution us against using these as -- as continuing standards for major questions. one thing we said is that congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance. and the second thing we said is that the court greets with a measure of skepticism when agencies claim to have found in a long-extant statute an unheralded power to regulate a significant portion of the american economy. do you have any disagreement with those two principles? general prelogar: no. i certainly recognize the court has used that as a basis to apply major questions, but i certainly dispute that either of those principles could carry the day here. with respect to vast economic and -- and political significance, of course, there's no agency regulation to review, but even looking at how the statutory scheme operates, i -- i don't see how epa could issue that kind of regulation without transgressing the other limits. if it were really a transformational type of regulation, it wouldn't be adequately demonstrated. it wouldn't be what the industry is already doing to control pollution. it wouldn't be cost-effective. maybe it would transform the nature of our reliance on particular forms of energy and so threaten the -- the reliability of the grid. so, in all of those ways, i just don't think you can get to that end result of saying that the statute would necessarily encompass those kinds of effects and certainly not through this inside/outside-the-fence-line restriction. and then, finally, with the unheralded power language that you read, you know, this is a statute where the court has already recognized in american electric power that congress spoke directly to the issue of who epa should regulate, existing power plants, what it should regulate, their greenhouse-gas emissions, under this exact provision, section 7411(d). and i acknowledge in a colloquial sense that that seems like a pretty big deal, but that is right in epa's wheelhouse because this court already recognized that congress conferred on epa, the expert agency, the authority here to make those judgments. justice kavanaugh: so you don't dispute the general principles, but you think the general principles don't apply to this particular situation? general prelogar: i think that they both don't apply to this situation and that those principles are never something the court has looked at without taking stock of the actual effects of a particular regulation. so it hasn't referred to those types of principles in a context outside the -- the idea that there really are -- there really is an agency regulation that is -- is having that kind of transformative effect. justice kavanaugh: thank you. chief justice roberts: justice barrett? thank you, general. ms. brinkmann. ms. brinkmann: mr. chief justice, and may it please the court: the statutory framework congress created in section 7411 is critical to the power companies. for years, the power companies have used emissions trading, generation shifting, and other measures to reduce emissions while keeping the lights on at reasonable cost. the ace rule would exclude those measures from the bser because they are not at or to a source, but nothing in the statute excludes them. congress directed the expert agency to look to reality when it makes the empirical determination of the best system of emission reduction for the source category. congress would have expected the agency to consider emissions trading. congress had allowed emissions trading by fossil fuel plants to control emissions of various pollutants for decades. we know that congress did not impose the ace rule restriction on the bser because of the other sections of the statute where congress did narrow the text to -- for certain other emissions limitations but not in 1174(a). the ace rule would eliminate significant, long-standing, cost-effective means of lowering emissions. that's why the power companies urge rejection of the ace rule while embracing the many limits that the clean air act place on epa's authority. i welcome questions from the court. justice thomas: ms. brinkmann, i know you have some concerns about how the major questions doctrine was used here, but have you seen 7411 used in this way in previous regulatory actions by epa? ms. brinkmann: yes. in 2005, your honor, the mercury rule used it in just this way. petitioners try and suggest it wasn't part of the bser, but it indeed was. and i would also point, your honor, not just to the actual 1174(d) mercury rule but also the acid rain rule and the good neighbor rule under 7410. those were all instances where congress said that they had to use emissions trading, for example, but they did not require it in 1174(a), but there's no indication that it excluded it. and if i could, i think that the statute really answers this question. there are limits, many limits which the solicitor general addressed, but there's no at-and-to limit. and if i could, i'd like to really focus on subsection (h). subsection (h) in 7411 is a provision that is used as an alternative to (a). under (h), that is the provision that says, if a standard of performance is not feasible for certain reasons, then -- i'm going to quote, this is on page 9a of the solicitor general's gray brief -- "he may instead" -- instead of 1174(a), what we've been talking about -- "he may instead promulgate a 'design, equipment, work practice, or operational standard or combination thereo'' which reflects the best technological system of continuous emission reduction." that is the alternative to (a). those limits and restrictions are not in (a) in the best systems of emission reduction. so we know that it's not in the text and we know, when you look at the adequately demonstrated provision of 1174(a), of course, emissions trading certainly would have been considered because it was already being done by fossil fuel plants under the acid rain rule, under the good neighbor provision, and there had been the mercury rule. the other thing when you're looking at adequately demonstrated, there is a -- since 2009, there's been a regional greenhouse gas initiative where many states do generation shifting. so the statute answers the question in this case. it is clear from that that the best system of reduction -- emissions reduction, which is a benchmark that the epa sets, that the emissions guidelines that they set using the bser is not prohibited from using these very standard practices -- chief justice roberts: well, what about -- brinkmann: -- of the power companies. chief justice roberts: -- what about not so standard? could the best system of emission reduction adequately demonstrated involve shutting down a plant? ms. brinkmann: no, your honor. and that goes to these other constraints that are in the structure of the statute. at the beginning of the statute, it talks about categories of sources. that's the predicate for the ability to epa to even regulate under 1174(a). you look at 1174(b), and (b) talks about the agency has to first list categories of sources, so -- chief justice roberts: okay. okay. i -- i haven't gotten to the part yet where they can't do that. ms. brinkmann: right, because it's about reducing the emissions in that category source. chief justice roberts: right. ms. brinkmann: it's not about reducing the production of energy. indeed, that's contrary -- chief justice roberts: well, why wouldn't reducing the emissions in a category source require reducing them to zero? ms. brinkmann: because the purpose is to reduce emissions while maintaining power and energy. that's what's so important to the power companies about the reliability of this very complex power grid that's -- chief justice roberts: well, what's all the stuff about generation shifting then if you can't generate -- you can't shift generation down to zero? you -- i mean, would it be all right if you -- this resulted in generation shifting requiring a 10 percent reduction? ms. brinkmann: one of the explicit requirements of 1174(a) is to consider the energy requirements, and saying that a -- basing the best system of emission reduction on the fact that some plant had to be shut down is not consistent with that. it's not about reducing production. it's about keeping the production but reducing emissions. chief justice roberts: well, yeah, but the whole idea is that you take that production and you shift it somewhere else, whether it's wind turbines or solar or -- or whatever. ms. brinkmann: if i could try an example, your honor, because the ace rule eliminates a lot more than generation shifting. i think i'm going to the emissions trading example that the solicitor general was talking about. there are two plants. this is an old, aging coal plant. it's got a couple years left. this is a new one. there's a big turbo-charged scrubber that has to be put on. it's just too expensive for this plant to invest in that. this plant can do it easily and reduce this to the level. so the first plant says to the second plant: if you double your reduction, i'll pay you for that. and that's cheaper, it's more cost-effective for the power companies because the first plant can keep operating. emissions trading is what keeps those plants operating. and they are reducing the emissions twice as much because the second plant -- chief justice roberts: i'm sorry, i don't see -- i -- i'm sorry, i'm being -- i'm being thick here, but i don't see how the old power plant with two years left, how it has kept operating under the scenario you just described. ms. brinkmann: because it gets credits. it gets the emission credits from paying the second plant to reduce twice as much its reduction. that doubled reduction wouldn't happen except for that the first plant, it's cheaper for the first plant to pay the fancier new plant to double their reduction. and so the first plant can live out its life because it gets those credits towards its limit. that's what these restrictions place on. i should also say there is no ability for the agency to require our companies to invest in electric vehicles or to plant trees because the reductions of emissions have to come from the source category, and that source category is -- is where the petitioners get off -- they keep talking about source, source. no, it's the source category that triggers the ability for the agency to regulate. and i can also explain that language in (d) if we want to. i know, justice kagan, you were asking about that. when you look at the language about any source, it also says any pollutant, that's the introductory sentence in there saying, states, you have to do a plan for any -- it's what justice breyer was saying; in other words, all of them. you know, you can't leave anything unregulated. we do agree that the state plans and the standards of performance go to individual plants. and if you look later in (d), actually, at the bottom, it talks about when we can take into -- when the state can take into account the remaining useful life, it says any particular source. i mean, it is very clear when you march through it that the bser here, which sets a benchmark, this is not command-and-control regulation, this is a benchmark that then is used for the emission guidelines, that in that sense we're looking at the source category. justice sotomayor: ms. brinkmann, as i read (d)(1) and as -- just going to what justice roberts asked you, a state could, in its judgment, exempt a particular power plant from regulation, correct? brinkmann: the statute explicitly says in (d)(1) that they can take into account the remaining useful life, and that's why this kind of emissions trading in the credits is so important because it's not just -- justice sotomayor: but they don't have to do that. they could do an exemption for that source. ms. brinkmann: yes. that's correct, your honor. justice sotomayor: because the credit could be too expensive, that it could kill the plant now rather than in two years, and so a state could decide that, correct? ms. brinkmann: and -- yes. and that's what such a huge problem is with the petitioner'' argument suggesting that our flexibility and ability to comply with the state plans also would somehow be cabined by this. and the statutory text cannot support that. the framework cannot support that. justice sotomayor: thank you. justice breyer: by the way, what is -- before you finish with (d), i didn't quite get it. so (d) has to do with state plans -- ms. brinkmann: yes. justice breyer: -- applied to existing sources, and it says the administrator shall prescribe regulations under which -- this is the epa -- under which each state shall submit a plan which -- and now we're talking about the state plans -- establishes standards of performance -- and that includes the word "system" standards of performance -- for any existing source. now you heard your -- your -- your -- your colleague, your brother on the other side. he said no. he said that it says for any existing source, so it means a system for any existing source, and his point is, if that's what the state has to do, surely the epa plan has to be similar. now there may be some space in there, but how do you interpret those words which he brought up? ms. brinkmann: so, your honor, the next three words after you stopped reading say "for any air pollutant." justice breyer: yeah. ms. brinkmann: so, if you understand what that sentence is saying, it's saying you have to do it for all of them, for any in your state so none of them remain in -- justice breyer: oh, all right. but carbon is an air pollutant. and so, if it's for any air pollutant -- ms. brinkmann: right. justice breyer: -- you have to do it for carbon. ms. brinkmann: right. justice breyer: and what you have to do is provide a standard of performance for any existing source of carbon. ms. brinkmann: that's the -- the standard of performance that the states do. justice breyer: yeah. ms. brinkmann: and if you go further down, your honor, at the bottom, it talks about also regulations of the administrator shall permit the state in applying a standard performance to any particular source under a plan submitted under state -- into consideration remaining useful life. that is clearly the -- the state system. if you go back to -- justice breyer: yeah, i know it's the state system. ms. brinkmann: right. justice breyer: nobody says it isn't. ms. brinkmann: but, if you're going back to (a)(1) and we talk about the best system of emission reductions, that's the benchmark that is then -- that is the best system of reduction that is then used to set this benchmark, this emissions guideline. there, congress spoke very clearly, and the reason they can, you know, do this is because it's a category of source under (b) that's been listed, and so they can only do this if there's a source category. so then you look at the source category, and what's really important, you have to look at what's adequately demonstrated. that means you look to reality. you look to what's been going on. and we know emissions trading has been going on. and we know, when congress meant to limit something and to say no, no, you can only consider technology, you can only do more at two things, they did things like in (h). and it's not just (h), the alternative i talked about before. it's also in 7412 and a host of other provisions. in (a), which is addressing the best system of emissions reduction here, there's no limitation on that, and that makes complete sense because that's what congress wanted to do, particularly in this very complicated electrical grid scenario, where you look at the industry, you look what's adequately demonstrated. justice sotomayor: do states do a plan that includes each power source in their grid? meaning -- or is it like what the epa does, a general standard, and then the -- the states decide how it applies to each source? that sounds to me like the state comes in and says, for this kind of source, you have to do this; for that kind of source, you have to do that. am i correct about that? ms. brinkmann: yes. and the states, in fact, have to go through and even identify all the sources are covered based on, you know, their size and their emissions and that type of thing. justice sotomayor: so they -- they sort of form-fit for that -- they fit for each source what their plan is? ms. brinkmann: and it's -- yes, your honor. it's very -- justice sotomayor: and so that's why, for each plant, there could be a different set of systems that meets the goal, correct, a different way for each plant? ms. brinkmann: there could be different measures that they use, your honor, and that's why it's so important -- justice sotomayor: and so that's why what you were saying -- ms. brinkmann: yes. justice sotomayor: -- which is to say for each source doesn't mean that it limits you to in-fence regulation? ms. brinkmann: not at all. justice sotomayor: it lets you do whatever regulation is necessary to reach the standard? ms. brinkmann: although i would step back and say, of course, not whatever because it has to be reducing emissions, not power. it has to be reducing emissions from this category source. and i think that's the kind of word game that comes in. oh, well, then there's no limit. no. the fact that "at" and "to" is not a limit does not mean it's a free-for-all. there are other limits. and i also would say, justice sotomayor, that i really think goes to that, it's really significant to me that when you read the term "standard of performance" in 7411(a)(1), it says it has to be a standard which reflects the degree of emission limitation that's achievable. that -- that is going to exactly how this works. you know, it's this benchmark. it's not this command-and-control regulation that epa does. now it's also, i think, you know, significant when you look at the way in which the states then have the flexibility and the power companies certainly have the flexibilities to do something as important and as critical as emissions trading, which reduces the emissions that would not otherwise be reduced in this source category and yet allows infrastructure investment to remain, allows plants to live out their life in a more economic way, and this is incredibly cost-effective. chief justice roberts: thank you, counsel. justice thomas? justice breyer? justice alito? justice alito: yeah. may i ask you to respond to -- i think it was the last question that justice kavanaugh asked the solicitor general, and that has to do with the scope of the major questions doctrine, and he pointed out language referring to questions of vast political and economic significance and reading a new interpretation into a long-dormant statute. her answer was that those would be important factors in considering whether the -- the major questions doctrine applies. at least that's how i understood her answer. if that is correct, would you agree with it? ms. brinkmann: it needs to be considered at less of a level of abstraction with all due respect, your honor. for example, the court has always looked to an exercise of agency authority, something the agency actually did that reflected the authority they were claiming. and i point to the osha vaccine case, that recent decision there, because, of course, the court's rationale was, you know, osha is now regulating every employer, everybody, vaccines, outside of the workplace, and gave pause in that. but, in that opinion, it was very specific to say, you know, that's when you're taking every employer that has more than a hundred employees in this country, and i don't even know how many millions that covered. justice alito: well, i -- ms. brinkmann: but -- justice alito: -- i take your answer to mean that we should look to what the agency is actually doing and not what it could do under a particular interpretation. is that -- is that correct? ms. brinkmann: that's part of it, your honor, because there it said, you know, this might be okay for osha to be doing for medics or for people who work in particularly cramped areas or researchers for covid. that's why that's so important. and we think that, you know, considering it out of that in a more abstract way is not the threshold question. that's why we think the statute would be -- justice alito: well, how -- how would that work? let's say an agency takes a long-dormant statute and interprets it in a way that would have vast political and economic significance if the agency exercised all of the power that it claims it has under its interpretation. but, as a first move, it adopts a fairly modest rule that only invokes, let's say, 5 percent of that power. you would say that's not an occasion for applying the major questions doctrine. is that right? ms. brinkmann: i would say -- first, i just want to say i would push back on the premise that this is a long-dormant authority because it has to do with -- justice alito: yeah. no, it's a hypothetical. ms. brinkmann: yes. okay. justice alito: but if those conditions were met. ms. brinkmann: of course, of course. looking at the exercise of the agency authority helps determine whether or not it poses a question of significant consequence because, of course, congress does sometimes, like, crystal clear give very, very important significance. so we really agree with the idea that you look at that first and if there's some ambiguity, but we think, here, the text answers it. justice alito: well, i do think -- ms. brinkmann: but then, if there's ambiguity -- justice alito: -- i do think you're hyping my hypothetical -- you're hyping -- you are -- you're questioning my hypothetical. you're -- ms. brinkmann: i'm sorry, your honor. justice alito: -- dismissing the hypothetical. maybe it's not a good hypothetical. but the agency says, here's the statute. we think we can do a lot under this statute. this is our interpretation. but, for now, we're only doing a little. we're only exercising 5 percent of that authority. and you would say no, that's not a major question because we look at just what they're doing and that's not all that disruptive. am i right? ms. brinkmann: no. i'd want to know as a judge what exactly they did, and then i would compare it to the statute. you need to pressure test it against the statute first to see if there's authority for it for -- justice alito: i -- i'm going to ask it one more time because i think you're just disagreeing with the hypothetical. they say, we can do all this, but we're only doing this, all right? don't question whether they -- there's ambiguity about whether they can do all of this. they say, we can do all this, but we're only doing a little for now. is that -- do you rule out major questions because they haven't done it now? ms. brinkmann: i -- i don't want to say i rule it out. if i could just -- let me get -- i think that that rests -- oh, we can do this, it's kind of like dicta in a judicial opinion. they're saying that -- justice breyer: i think he's saying -- do you mind if i -- justice alito: yeah. justice breyer: look, in tobacco -- ms. brinkmann: mm-hmm. justice breyer: -- suppose they started off in saying we are regulating the advertising of four-foot cigars smoked through hookahs, okay? [laughter] justice breyer: now the problem is, can you regulate tobacco? and if you can regulate tobacco, that's a very big deal. but they say, no, it isn't. it's just this tiny -- you know, there aren't -- there are only three in the whole country, so it's a little deal. so it isn't the major question doctrine. and i think what he wants to -- i would want to know too is -- is, hey, do you apply it when it's just a little thing? now you might say -- i guess you are trying to say it's case by case. it depends. ms. brinkmann: i think that, you know, that helped me, your honor, and, justice alito, i really don't mean to be not answering your question, but the fact that it involved tobacco right there would be a question, and you would look at it against the statute and say i don't see tobacco there. and then you start looking at this doctrine to see, and you look at -- i -- i would say there are at least three or four issues you look at. is it expanding regulation over a lot more entities or people? osha, in the uarg case, there were millions more. of course, here, nobody -- there are no additional entities being regulated. it's just a benchmark. it's not even a command and control. the other thing i would say, it's clearly in the wheelhouse. it's not like osha and -- or -- or -- or -- or cdc and landlord/tenant. the other thing that the court has looked to a lot, your honor, and i think this goes to how looking at the agency is useful to know whether you look at major question, is whether it's a major question because it's contrary to what the agency has been doing in the past. and, here, we really would say that seeing what it's done like here, this "at" and "to" would eliminate emissions trading. that's been going on for pollutants under many provisions of the statute for decades and including under this one in the -- the 2005 rule that was invalidated on other grounds, but i think that is why i -- i hesitate to say that you could do it at the threshold. i really think that it has to be the statute can answer it. and if the statute answers it, that should be the first question. but, if it says tobacco and there's nothing in the statute about tobacco, then, you know, you need to -- to consider these other factors. justice alito: well, i won't -- i won't belabor it. and i -- i can never equal my -- my colleague's evocative hypotheticals. [laughter] but, you know, what happens after they -- the 5 percent case, they say, oh, this is not a big deal, it's not major, and then the agency says, well, no, you know, we're going to claim 20 percent. and then they -- later they say we're claiming 40. and, eventually, they get up to 80, 90, or something like that. at some point, can it become a major question? ms. brinkmann: it may. i mean, here, it's not a percentage. it's -- you know, it's a -- a different sort of thing. and, to me, that is the problem that there's just -- and, again, you go to the text first, but if there's some new extraordinary exercise of power that would come in and the statute doesn't answer it and there is some ambiguity, then we would say that's what this court's precedents teach us to look at. but, in each of the court's precedents, your honor, they have looked at the agency action first and they have pressure tested it against the statute before jumping to major question. chief justice roberts: justice sotomayor, anything further? justice kagan: you know, it's not always the case, ms. brinkmann, that a lawyer responds to one of justice breyer's hypotheticals by saying that's really helpful. [laughter] ms. brinkmann: well, i appreciated it. justice kagan: but that's not my question. i think it was the chief justice who asked general prelogar, like, if -- if -- if the major questions doctrine is supposed to be asking some form -- some question, like, is it really surprising that the agency did this in the way that it was really surprising that the fda regulated tobacco or whatnot. and general prelogar's answer to that question very much from an agency perspective was, like, it's not really surprising at all after massachusetts versus epa at the very least that this agency is doing greenhouse gas regulation. this is in -- you know, exactly in its wheelhouse. but i -- i hear you making a kind of different argument, and i just want to make sure that i'm reading you right because you're saying not from the agency perspective but instead from the power plant perspective something along the lines of: if you do anything about the way power plants operated, which maybe we do and maybe we don't, but you would know that we do these kinds of outside-the-fence things all the time and that it's a sensible way for all of us to proceed and that if you took that away, you would be essentially -- you know, it's not surprising because that's what the industry does. so is that right? ms. brinkmann: yes, your honor, and we would say that what congress did in the statute reflects that. they told the agency, you have to look at what's adequately demonstrated. that's not a very common directive that congress gives to agencies, which we welcome because we think there are abundant limitations in this statute. so they have to look to what adequately is demonstrated. also, not only has the -- the power companies been engaging this, but it's critical that, you know, these emissions trading in particular, i think it also explains and understands the statutory scheme, why it's source categories. that's what the agency has to list under (b). and they figure, okay, we're going to look at that now, what's adequately demonstrated in the source category, and then we're going to look through and we're going to look -- and, you know, petitioners acknowledge this for other factors in 7411(a). so did the ace rule. when they were looking at whether something was adequately demonstrated, they looked, of course, at source category, not for one individual source. that's not what 7411(a) is about. so, yes, your honor, we -- we do say that from our perspective, you know, that's what's important to the statutory scheme in 7411 that congress set up and directed the agency to look to those standard practices that we've been engaging in. and i think, under the acid rain rule, for example, it's -- it's not the same pollutant, but it's certainly a system that congress itself set up in 1990. at the same time it did not amend 7411(a) to limit it in that way, it didn't require us to do it, but it certainly would have been in that, you know, basketful of measures to look at to see what best system of emissions reduction should be used for 7411(a). justice kagan: and is there any necessary relationship or, indeed, is there even a probable relationship between this inside-the-fence and outside-the-fence regulation on the one hand and huge economic impact on the other? ms. brinkmann: not at all, your honor. that's why i tried to use in my oversimplified example about emissions trading two coal plants with a really expensive scrubber. no, i mean, something could be really expensive and, you know, it could cause generation shifting, it could cause all manner of things, but it does not align with the "at" or "to." a colleague of mine explained to me it was orthogonal, and i thought that was an interesting word that i looked up and understood that it just doesn't align with the "at"/"to" distinction. there could be things "at" that are quite, you know, exorbitant; there can be things that are outside. for example, pre-washing coal at another site that then comes onto the actual facility, that's something that would be outside the fence line or not "at" and "to," and that makes a little sense. chief justice roberts: justice gorsuch? justice kavanaugh? justice kavanaugh: i think the potential surprise here, to pick up on justice kagan's question, doesn't go to regulating co2, as she rightly says, but is using a cap-and-trade regime given the statutory language. and i don't -- your responses to that, i think, fall into two categories. one is cap-and-trade is much better for the industry. it makes a lot more sense, more flexibility, industry prefers it, it's good policy, it's better than command and control. and i think those are all -- you know, those are solid arguments that we -- we need to consider. the second, on the more legal question, is, well --and you've mentioned it a few times -- the acid rain program was put in by congress. that was cap-and-trade in -- in 1990. and then, second, in your brief and today, you've emphasized -- more in the brief -- the 2005 mercury rule that the second bush administration put in. and you've put some emphasis on that. and that was cap-and-trade. and so the question there, though, is that rule was then vacated in 2008 -- brinkmann: yes. justice kavanaugh: -- on -- on different grounds. how should we think about that 2005 mercury rule as we think about this issue? what significance should it play? because you did play it up quite a bit in the brief. ms. brinkmann: if i could, i think there's one predicate argument that i would make, your honor, that i think you have to look at subsection (h) as a textual matter. that's what tells us that 1174(a) does not have -- it's not excluding things and saying you can only look at technology and things "at" and "to." so, if you don't have to do that, then, of course, you look at emissions trading and all because everybody knows that's out in the basketful of tools. but, under (h), congress said, if you can't do (a) for -- because it's not feasible, you do this other thing, and you can promote a design, equipment, work practice, or operational standard, or combination thereof. so that's not in (a). so then you go to (a) and you look at the text, and it says, what's out there that's adequately demonstrated? well, we know that what's adequately demonstrated for this source category, fossil fuel plants, is what's at issue in the acid rain rule. that was in 1990. there's also in 7410, which is that also involves emissions trading. we know all of that was out there based on the text and structure and was adequately demonstrated. i would say yes, it is very cost-effective for us. that is why it was adequately demonstrated. but i think it is not a policy argument, it is looking at what the text of the statute tells the agency to do when they sent this benchmark. the mercury rule was invalidated on other grounds, but did include emissions trading in the bfp -- bfer. if you go to the federal register, it is explained as the bfer, the best method of omissions reduction. that is what we are talking about today. we would say the critically important aspect under d, that power companies have flexibility in compliance. justice: thank you, counsel. general? >> it is critical the general backed away from the state for good reason. it does not make sense that a doctrine intended to protect parties could be a judgment that would private this court of jurisdiction. we have a new argument today that the effects of jurisdiction does not bring the clean power plant back to life. we can look at joint appendix 215 where the d.c. circuits said it vacated the ace rule in the cpa repeal. the response from the general is that there is internal memorandum from epa that says it didn't do what the words said. but an internal memorandum none of the petitioners had any input in by the side that was trying to be this court jurisdiction should not be held against us. there is no authority in the court president that that should erase the actual language of what the court below actually did. all that's left then is the prospect of new rulemaking, but, again, the respondents have not challenged that they have to show that we are certain not to be hurt by the new rule. they said in their brief that they might enact the very same provision, and they have told you nothing different here today. so, this court should proceed to the merits. when it comes to the potential limits that have been put on the statute, general prelogar said that states actually have more options under a plan like the cpp. but she referred to things like carbon capture and heritage reporting corporation sequestration, natural gas co-firing. the cpp also said that those would be impossible for the vast majority of sources, so that's not a real option available. ms. brinkmann talked about what's achievable for the source category, but she's certainly moving beyond the source category, and the cpp did there. it's not simply what coal-fired or natural gas power plants can do. generation shifting, under the guise of the cpp, requires bringing into that category renewables as well, an entirely different sector. and so that's what takes us into the major question territory. this is a major question because it allows epa to determine what the power sector as a whole should look like and who can be in it. it transforms the statute from something that is about how a particular source can operate more efficiently. no matter which of the factors this court looks at from its previous decisions, this is major. this is new power. there are 70-plus regulations under 111(b) that have not used this interpretation of the statute. the only example given today is the clean air mercury rule, but there, in the federal register, epa was very clear that the actual emission limitation was based on physical and chemical carbon capture technologies. certainly, it said that there could be other compliance mechanisms. but that's not the same thing as saying the actual emission limit was based on outside-the-fenceline measures. so this is new power. this is transformative power. it's power that goes into an area of traditional state authority, which is energy and utility regulation. so, whatever definition of major questions the court does, this is far on the other side of it. this court has full power to give us an answer, and it should. this is a critical question. the court has a rule before it, and it should give an answer. thank you. chief justice roberts: thank you, counsel. the case is submitted. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> you can listen to the entire oral argument at 8:00 p.m. on c-span, biden versus texas, on the new c-span app, or on c-span.org. >> c-span's washington journal, every day we take your calls live on the are the news of the day and discuss policy issues that impact you. coming up friday morning, an assistant professor of military studies at the u.s. academy talks about wnba star brittney griner's detainment by the russian government. then, and afghanistan war veteran on his soldier's memoir and ptsd. watch washington journal live at 7:00 eastern friday morning on seized and or c-span now, our free mobile app. join the discussion with your phone calls, facebook comments, text messages and tweets. >> c-span is your unfiltered view of government. we are funded by these television companies and more, including charter communications. >> broadband is a force for empowerment. that is why charter has invested billions building infrastructure, upgrading technology, empowering opportunity in communities big and small. charter is connecting us. >> charter communications supports c-span as a public service along with these other television providers, giving you a front row seat to democracy. >> this morning, british prime minister boris johnson announced his immediate resignation as our team leader. he offered no timetable, but says he plans to resign as prime minister. meantime, he will remain in the post until the party chooses his successor. p.m. johnson: good afternoon, everybody. [applause] thank you. thank you. it is clearly now the will of the parliamentary conservative party that there should be a new leader of that party and therefore a new prime minister. and i've agreed with sir graham brady, the chairman of our backbench mps, that the process of choosing that new leader should begin now and the timetable will be announced next ek

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