Utility Air Regulatory Group v. EPA (12-1146)

argument 12-1146

Utility Air Regulatory Group v. EPA

Supreme Court of the United States 1h 36m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central dispute between the petitioners and the EPA in this case?

John G. Roberts 0:01

We'll hear argument this morning in case twelve eleven forty six Utility Air Regulatory Group versus the Environmental Protection Agency. and the consolidated cases. Mr. Keisler?

Paul D. Clement 0:12

Mr Chief Justice, and may it please the court. The situation presented by this case is, to our knowledge, unprecedented in at least two respects. First, EPA agrees that if its interpretation of the PSD and Title V statutes is adopted, then applying other provisions of those same statutes would, according to their terms, would in EPA's words result in a programme that would have been unrecognizable to the Congress that enacted it. and so contrary to Congress's intent that the agency calls it absurd. Second, EPA took that conclusion not as a reason to re examine its interpretation, but as a basis for rewriting other provisions of the statutes that are clear and unambiguous, the numerical permitting thresholds that Congress enacted, because the agency wrongly believes that fixes the problem.

Paul D. Clement 1:01

And this is not a single one time act of statutory rewriting as problematic as that alone would be, because the agency has said it intends to continually adjust and readjust thresholds into the indefinite future based on its ongoing assessment of the costs and benefits of regulation. So

Anthony M. Kennedy 1:18

Kaiser I'm sorry. Can I ask about your interpretation of the phrase uh any air pollutant? Because there are a lot of different interpretations that have gone on among the various briefs. and among the uh the lower court opinions in this case. So here are some uh choices, all right? And I won't really to ask you to pick what you're arguing for. Uh your original position? was that any air pollutant me meant any NACS pollutant for which the area is in attainment. That was your original position. Judge Kavanaugh's position is that it means any knax pollutant. There's another position that goes on in the briefs that says no, it doesn't mean any Knax pollutant. It means any local pollutant, whether or not it's an axe pollutant.

Anthony M. Kennedy 2:06

And there's still another position that says it's really any regulated pollutant other than greenhouse gases. So those are four different interpretations that uh all of the folks on your side, and I realise there are a lot of them, have presented. And I guess I'm asking you which one you're arguing for.

Paul D. Clement 2:25

Yes, Your Honor, I am here on behalf of all the private party petitioners, and we have two arguments. Our principal argument, and the one I would like to focus on first, is that while other programs of the Clean Air Act give EPA authority to regulate greenhouse gases from stationary sources, PSD does not. And that is because and this is where I I would choose one of the options Your Honor gave me, and that is because the PSD program The program is exclusively focused on emissions that have area specific air quality impacts and not on globally undifferentiated phenomena. I wouldn't use the word

Anthony M. Kennedy 3:00

Well when when you say uh area specific, I mean I take it that these sort of ozone pollutants are not area specific. Would your interpretation exclude those as well?

Paul D. Clement 3:11

If the EPA couldn't make a regulatory finding that they had an area-specific air quality impact, yes. Now the solicitor

Elena Kagan 3:18

Could I ask you a follow-up to Justice Kagan? Now that's a fifth interpretation by your side. That to me is the quintessential ambiguity in a statute. where we give deference to the agency. So Yes. Your side can't even come. to one interpretation. Why shouldn't we defer to the agency?

Paul D. Clement 3:46

Well, first of all, Your Honor, the deference that an agency is afforded is always going to be limited to reasonable interpretations. And we would start out with the premise that an interpretation that requires the agency to rewrite other provisions of the Act is the reason. Well, it

Elena Kagan 4:00

hasn't rewritten them. All it has said, as I understand it Um and I don't understand Other than your view that there are too many people it's regulating. is that we can't implement it immediately. because it would overburden it us administratively. It hasn't said that over time with streamlining and with other