so students and families can get the tools they need to be rey for everything. >> comcast supports c-span as a public service along with these television providers, giving you a front row seat to democracy. >> next, the u.s. supreme court hears oral arguments in a case to detmine the power of the environmental protection agency to regulate national air quality standard case was originally filed by numeus states and companies following an epa ruling establishing national rules. justices have until june to issue a ruling. this is about 90 minutes chief justice roberts: we will hear argfirst this morning in case 23a349, ohio versus the environmental protection agency, and the consolidated cases. ms. sridharan. ms. sridharan: mr. chief justice, and may it please the court: the epa set out to address the contributions of 23 upwind states to downwind air

pollution through a single federal plan, but, as commenters predicted and before the plan became final, the legal predicates for the feder pn, that is, the state plan disapprovals, came under fire in courts all around the country. the specter of lesser partipion in the federal plan revealed yet another problem. the epa's choice of method, that is, selecting a single cost threshold and applying it uniformly across all 23 states tostablish emissions limits, has consequences; namely, the math doesn't work when the inputs don't match the outputs. with the sip disapprovals in flux and the epa's methodolog quing full participation, the epa had an obligation to considerhahappens to the

federal plan when one or more states drop out, that is, when thints, 23 states, don't match the outputs, now the 11 states that remain in the plan. itfailure has become consequential. the plan now regulates under half of the states a auarter of the emissions that the epa originally set out to regulate. under this fractured plan and without a stay, the remaining states and their industries face serious harm. i lce the court's questions. justice thomas: well, it seems that your argument is dependent on whether or not the orin plan was interdependent and required all the statetoe in. what's your best evidence for that? ms. sridharan: the best evidence for that, your honor, is the method that the epa chose, and the method it chose has to do withisrning points of diniing marginal returns, which meanth when the mix of states changes, in this ca, when states drop out and their particular technologs d industries drop out with them, those points of diminishing

marginal returns shift, and they shift somewhat unpredictably, which means that the relevant cost tesld for a different mix of states could be cheaper, and, with full candor to t court, it could be the same or even be more expensive it is the unpredictability that renders this plan reonable as to any different mix of states. justice sotomayor: could you break that down? i don'unrstand. you started your introduction by sanghat the commonality was cost. bui thought that cost had to do with the technology and how much it costs to impme, so i don't see why that would be different among the 50 states or marginally important enough to be different. ms. srhan: of course, your honor. justice sotomayor: and to the exte tt the other states dropping out don't increase the cost for a othe remaining states, they -- their allotment remains the same regdls of how many people are participating. so i don't e w you're

raising an argument, frankly, not for yourself because nothing's changed. ms. sridharan: well, your honor, lemeake that in reverse, and i'm happy to go down the gritty pa of the technical details. but, before that, the allotments may not change in the way the epa has executed the plan, but the allotments tmsves are wrong when the epa fails to consider whahaens with lesser participation. and answering -- justicmayor: i -- i -- i -- say it, but show me. ms. sridharan: sure, your honor. the answer goes, again, to the meodology, which i keep calling the point of diminishing marginal returns questio a i'm happy to go epy step into what is admittedly an extremely grtyathematical problem. justice sotomayor: why don't you get t end question. nothing is changing in your cost orhayou have to do, meaning states that are -- who -- for

whom stay -- stays have not been given, their allotment doesn't change, nothing changes. ms. sridharan: again, your hor,ou're talking about the execution of those allocations, t the allocations themselves are now wrong, and what by that is the epa's method of selecting a single cost threshold. now that goes to looking for points on grh where an additional dollar spent produces little to no additional emissions reductions. those points on that graph ange unpredictably, erratically, when the mix of states changes. chief justice robert wl, i -- i -- i understand that point, but the calculations, the methodology a there, and i assume you just -- instead of putting 23 states in, you put 11 in and -- and, in looking for whatereduction, instead of a hundred, you do the 11 percent. how long do you think it w take if there were a proceeding to adjust the numbers along the lines that yourose or at least for epa to know what those

numbs e and determine whether or not that's a sufficient change in -- leads to a sufficient change i the result? ms. sridharan: i don't know how long it'll take thto recrunch the numbers. what i can say -- chief justice roberts: i'll bet they do it real quickly. ms. sridharan: i'm sure they could, your honor, but here is the problem: they failed to considernyf that. i mean, this is a failure to consider problem. they failed to consider the mo important aspect of the interdependency that they introduced into the progm virtue of using this particular methodology. what's mo i even if there ultimately is no change -- and i can't llou what that looks like, whether there is a difference in the obligations or not -- there are at least some examesn the record for the coalition of states that i represent where there could be a cheaper cost threshold. but what matters is th failed to consider at all and has sort of blown he problem here, saying nothing to

look here, just go ahead and execute your obligations as they are. justice kavanaugh: to make sure i understand that, i think you're saying, but correct me if i'm wrong, that when t e said the whole thing is severable in response to the comments that the sip disapprovals were going to be problematic and that would unravethwhole plan, when the epa said, oh, don't worry abou it, it'll be severable, that that was not adequately explained in terms of hoth subset of states would work. is that what you're saying? ms. sridharan: that definitely correct as to our position with respect to the severability pon. that is noju a failure to explain; it just blows past the problem. it is, at best, boilerplate. and let me give you an example of why that's true. d ey had -- justice kavanaugh: in other words -- let me just follow up on that. in other words, the chief justice's question, maybe they could do that quickly, maybe it would take them a while, but they didn't do any of that, right? ms. sridharan: yes, that's exactly right, your honor.

they've done nothing by way of addressing contingenci. justice kagan: the argument you're making now, i -- i don' remeerhat in your application. can you point me to where in your application i should ok to get your argument? because, you know, the w i remember your application, you -- very high level of generality about interdennce and collective responsibility and so forth, but you gave us really nointo allow us to say, well, how -- how wod is have been dierent if it had been 13 rather than 21? what would have changed? ms. sridharan: well, on pages 18 to 21 of our application, we address this mhology in, admittedly, the same broad and capacious terms that the epa uses in its final rule. juste gan: well, it's -- it's -- it's your burden right now to show a likelihood of success. and i have to say pages 18o 21, if i took these pages and i compared it to what you're saying now, i d't think that i

would find a whole lot of commonality. ms. srhan: well, your honor, that brings me to the second reason i'm here discussing sort t nitty-gritty of that methodology, and that is to directly answer this court's order and the question of why lesser participation matters, and in order to do that, we have had to plumb the rwell past what is in the final rule deep into the chcal support documents that the epa has filed. justice ga i appreciate that. i mean, we gave you qution and you're trying to answer the question. i -- i -- i guess it does, thou, ggest to me that this is an unusual posture for us to ben. no court has looked at the kinds of questions that you'reaising here and the kinds of questions that we asked you toisss. not a single court has addressed that issue. and yet he ware on papers that also do not address the issue trying to figure that out. that seems quite odd to me, an i'm wondering how you think we should do that. ms. sridharan: well, two reasons

or two answers to that, your honor. first of all, while these proceedings are going on, the statesndheir industries continue to suffer irreparable harm. and, second, perhaps this woul be different story had the epa refuted anything with respect to the interdependencies t plan. they have not said a single word saying that th interdependencies do not exist. i will -- i will concede that they kp ying, well, you can just plow ahead with your obligations. but they don't explain why those obligations make sense any more under the methodology that they chose. justice barrett: counsel, did you raise this interdependence point in the comments? ms. sridharan: yes, your honor. commenters did preview the fact that t feral plan and its uniformity would be destroyed by e p disapprovals and the litigation surrounding that. i can point to -- jue sotomayor: i'm sorry. where did that happen? i thought the sip disapprovals came after the epa had announced its plan. ms. ran: no, not exactly, your honor.

the sip disapprovals are the legal predicate for the epa' authority to have a federal plan in place. justice sotomayor:'m sorry, i misspoke. the -- justice barrett: stay? justice sotomayor: -- the rule was promulgated after -- before the sip -- before the courts restrained it with respect to some states? ms. sridharan: not exact. again, your honor, it is our view that publication in federal -- in the federal register is the point -- justice sotomayor: ah. ms. sridharan: -- where the ency -- justice barrett: well, w i that? why wouldn't it be the finality of the rule? why is publication the date we should look at? ms. sridharan: wl, couple of answers to that. with respect to e ean air act itself, it ties publication in the fedalegister to final agency action that is reviewable under the clean air act's judicial review ovions. second, by the epa's own words in the prepublication notice it presented in march, the a noted that that would not be the final rule for the ppo of

compliance, and, in fact, that would fail the sprong of this court's bennett test because legal consequences did not flow from that. but i also want to take a step back because, even if this court saees with me as to whether the stays fall into or out of the gambit of what the anc had to consider, the fact that the commenters previewed all of thprlems with respect to the sip disapprolsnd cautioned that the federal plan's unifortyould -- would falter, and then very quickly afrwds there was confirmation of that through litigation that popped ual around the country before the rule even -- the fer plan was in a prepublication form. all of that cued the agency into its obligation to address this very serious structural flaw th the federal plan. justice jackson: counsel, i'm sorry, are you done? justice barrett: i'm done. justice jackson: so we're here on a -- a motion, your motion foemgency relief, and -- ms. sridharan: that's right. justice jackson: -- it's fairly

extraoiny, i think, to be asking the court to decide this matter when you haven't even lost below in terms of what is before the d.c. circuit, and, in fact, my understanding is that you haven't evenried this argument yet in the d.c. circuit. so i'm trying to understand what the emerncis that warrants supreme court intervention at this point. ms. sridharan: at the breakneck speed we're going, in oero go -- get into compliance with an unlawful federal rule, we are spending immense sums, both the states as well as our industries. and on top oth, we are facing the threat of power shortas d heating shortages, all of which have gone sort of -- justice jackson: imminently? i'm sorry, imminently power shortages and heating ges? ms. sridhat least some grid operators have pointed to th that this federal rule will be directly associated with a potential for grid unreliability. justice jackson: eventually. ms. sridharan: well -- justice jackson: we're -- we're

we're here on emergency relief, and i guess i -- i'm worried ab i'm worried about the standards that this court needs to take into account when it dewhether or not to entertain these kinds of motions,now. so what -- what do you perceive ms. sridharan: well -- justice jackson: -- with respect to showing harm? shouldn't we be seeking some sorttraordinary harm, not just the serious harm you say thtes will face? ms. sridharan: well, on top of that, i thinng back to the compliance burdens, that every dollar that we are spending -- and've spent a lot, and i know counsel for industry is going to stand up and tell you t the millions of dollars that are going to -- stice jackson: yes, but everybody who has to comply with the rule, right, has to spend some -- something, i would think, in to do so. and what i'm a little concerned about is that really your we think we have a meritoriousto claim and we don'want to have to follow the law while we're challenging it. and i don't understand why every

single person who is challenging a rule doesn't have that same set of circumstances. ms. sridharan: i think that to the immense sums that are spent that are not recoupable. goes to the fact that the timeline is exceedingly shortages we speak of, and if you go to grubb declaration that the natural gas pipelines have submitted, paragraphs 66 and 67, the harms're talking about are serious in terms of harms that -- justicjason: no, i understand. but i thought there was something about 2026 when -- when these things have to actually come into effect? ms. sridharan: the compliance deadlines might be then, but what es to get to come starts now. and from the states' perspective, we're the states, we've already started and we had to start. justice jackson: have you asked the lower court to expedite its review? i would think that that sh be required in a situation like this since you'reg stay this pending their review. so are they moving quickly at your request? ms. sridharan:o,e have not because of the nature of the proceedings before this court. we are seeking a stay of this court because of the harms that

we are facing right now, and w are -- we believe that our -- we will both succeed on the merits, reparable --e face the sort of justice sotomayor: 's in your brief? chief justice roberts: tha -- thank you, counsel. justice thomas? justice alito? justice sotomayor? justice sotomayo y never filed a motion for reconsideration -- ms. sridharan: that's righ your honor. justice soto -- after the rule was announced. the agency can only rely on comments that are made during the public time, not after, icmeans, without a motion for reconsideration, there's no record before the agency proving the interdependency you're claimi rht now, correct? ms. sridharan: no, your honor, the a record, and it comes from the methodology that the epa chose and explainewe into its technical support documents. justice sotomayor: y -but you did not supply a motion for reconsideration in which you laid out what these additional costs ulbe? ms. sridharan: we didn't ha to, your honor. ste sotomayor: all right. is it an inversion of normal rules when you're seeking expedition to bypassery court who's going to make the

substantive decision and not even ask them to expedite and rush to us -- ms. sridharan: i don't -- justice sotomayor: -- on an incomplete record? ms. idran: i don't think so, your honor. this is not an incomplete record t -- with the fact that the commenters previewed what' going on and litigation confirmed it very quickly. it is also not an inco record with respect to the methodology itself. now that methodology, again, goes well deepntthe technical support documents, in part because the epa engaged in a so ocapacious way of talking about the methodology, but it's there. and the ozone transport policy anysis goes down the details of how the cost threshold is specific to the mix of states that goes into it. and when that shifts, the epa has an oigion to assess why it matrsr why that cost threshold is still reasonably applied to any remaining states. it has not done so. this is -- the burden is oth epa to consider the introduced into the plan, and it

has failed to do s a it continues to stick its head in the sand by failing to go back to the drawing board. chief justice roberts: justice kagan? justice kagan: so, in this pour one of the things that we would -- that we are supposed toonsider is would we take cert on this case and woulyo likely to prevail if we did take cert. and one of the reaso ually we don't take cert on a case is if it has a lot sff before you get to theers issues, which is the only thing that we would be cceed about. and it -- it does seem to me you wanto the term "stuff," sometimes referred to as vehicle issues, there are just a lotf them here, right? there's the question of did you have to comment and did you comment? then there's the question of, well, evenf u couldn't comment but -- because you didn't know enough, should you have filed a motion for reconsideration? d u didn't file a motion for reconsideration. en there's this very complex

issue about how your question relates to the validity of the sip disapprovals themselves because, if the sip disapprovals were valid, you wouldn't have leg to stand on here. h are we supposed to know that in th pture? so i guesshai'm saying is there are so many hoops that you have to go through andouave to go through all of them. you have to run the table before we could even begin to get to your merits question. isn't that, according to our usual standards, a reason to deny this application? ms. sridharan: justice kagan, you've given a lot of stuff soated with this case, but there's one thing i really want to talk about, which is what happens if the sip disapovs ultimately settle in a place where all 23 states end up staying in the plan. that doesn't change our argument. the problem is the epa failed to consern the first instance

wh hpens when there is lesser participation. this is something that it doesn't matter what'going to happen next. justice kagan: well, that's sort of interesting. that doesn't seem intuitive to me. i mean, if a tse lawsuits that the states are bringing are going tondp losing, i mean, the idea that you can be here and be demanding emergency relief just because states have kicked up a lot of dust seems not the right answer to me. ms. sridharan: no, tt's not right, your honor, because, in this very unusual circumstance under the statute, as well as the e's choice of method, it is relevant to look back at what your honor has just termed "kicking up dust." but it's not kick dust because, first of all, the legal flaws were quitebvus, and they were previewed by commenters, and then very shortly aftear litigation and then the stays came around, alofhich the epa had an obligation to engage in rulemaking with its eyes wide en now, why that matters, i gav you two reasons: the unique statutory circumstance, as well as the epa's choice of method.

the statute itself requires the epa to look back to prior predice lemaking in order to assert its authority to have a federal plan, and necessarily ked into that is the fact that there may be judicial intervention, especially by the epa's own doing. justice kagan: what do you think the epa should have done? i mean, there ar23tates here. ms. sridharan: mm-hmm. justice ga was the epa required to sort of consider every permutation, you know, if 22 states are in the plan, if 21 states are in the plan, if 13 states are in the plan, if five ates are in the plan? which states are they? one of my clerks who does math better than i do tells me that there are two to the 23rd power, which is like 4 million different permutations. what was the epa supposed to d . sridharan: well, i'm not going to go as far as to say that the epa had to do necessarily every possible permutation of two to the power of 23 mis e, but -- justice kagan: ugh.

[laughter] ms. sridharan: -- but -- clerk it's minus one. to tell my [laughter] ms. sridharan: -- but -- plu one or minus one. what the epa had to do as a first matter is acknowledge th problem. so we're very far from talking about the line-drawing things that you're talking about. what the epa had to do was consider whether, under this method, it would need to address contingencies. and we're familiar in other areas of law where -- for example, in electis w, where you run a number of simulations and decide, you know what, we have a critical ss of a particular solution. let's apply that. let'head with that. justice kagan: thank you. chief justice roberts: justice go justice kavanaugh? justice barrett? justice jackson? justice jackson: so my understanding is that you actually asked the d.c. circuit to delay merits briefing in this case, and i think that's the opposite of what i would have expected if you are actual sfering irreparable harm. you owif you're suffering, i would think you'd want the d.c. circuit to be moving as quickly so can you speak to that? ms. sridharan: yes, uronor.

first, because of the posture that this case has gone on with respect toitation, the fact that we can get an answer that stymies the irreparable harm that is currently ongoing right now is something that we came to this court seeking because we -- you come to us?: no, but why did you're already before the d.c. circuit. and my questn , if you're sufferinuse you're spending money related to compliith the rule that you're challenging, why didn' you ask the d.c. uit to move quickly in rendering its ruling agreeing with you that the ru i invalid? ms. sridharan: well, your honor, i am not going to get too far into some t considerations that went into it, but the most important one is that we wante a rule that affects the entire in the first instance as quickly as possible so that we can avoid the sorts of irrle harm that we are currently suffering. justice jackson: thank you. chief justice roberts: thank yo cnsel. ms. sridharan: thank you.

chief justice roberts: ms. stetson. ms. stetson: mr. chief justice, and may it please the court: epa's authory der the good neighbor provision is limited to regulating ste's emissions that contribute significantly to downwind non-attainment. if epa is regulating beyonth authority, it is regulating beyond the statute. ms. sridharan has explained the deficiencies in a broken rule in which 90 percent of power plant emissions, 75 percent of total emissions, have been taken out t plan. but the court also asked wheer e emissions controls in the rule are reasonable regardss of the number of states that are involved. the answer is no for three primary reasons. first, the rule sectely ignores eme homer's cost-effectiveness framework. second, the rule over-controls acss number of industries. d, third, the rule imposes an impossible compliance timeline that will resultn liability issues across the country.

i welcome the court's questions. justice thasi think one of the concerns we have is that so much of this seems to depend o the interdependence of the 23 states and what happenifome of the states are cled. so let me k in a different way. could epa have accomplished the ext same thing by regulating the states individulys opposed to in a -- as a interdependent group? ms. stetson: icod not have accomplished the exact same thin jtice thomas, to the extent that ld have to show, when you say "exact same thing," thatutcome, the cost threshold and so forth, would beheame across 11 states. t, to your question of ms. sridharan, i think the issue that you were looking for is evidence about what epa did, and i want to point you to 88 federal registererage

reporting corporation excuse me. "when the effects of" -- i'm quoting. "when the effects of these emissions reductions are assessed collectively across the ndreds of egu and non-egu industrial sources tt e subject to this rule, the cumulative improvements in ozone levels at downwind receptors, while they may vary to some extent, are both measurable and meaningful tt is the best example of the collective eson that epa asked itself and aner. now, you know, justice somayor, you asked the question about cost and etr the obligations, for example, in ohio would be the me but i think the question here is -- goes backo at this court approved in eme homer. it's not just a question about whether epa can regulate something that is inexpensive, potentially inexpensive. it's not a question abo whether epa can regulate emissions. it's a question authether epa has appropriately calculated what it calls that knee in the curve, the point whe t

emissions contriti to a downwind state is controlled at a reasonable cost level. so i think the exchange that you had heritage reporting with ms. sridharan about where that cost issue comes from has to do with the question about, if you've got 23 states and all of their egus and all of the non-egu sources that are linked into this rulelleeding into that cost question, what happens if you take out the states where maybe you can control those costs most cheaply and you're left wh ates that actually have much higher cost thresholds to impose on industries or on egus? th changes the cost calculus. it also changes, of course, the emissions calculus. and i want to point in particular -- justice kagan: is that in your brief? ms. stetson: yes, it is. justice kagan: where -- where is that? ms. stetson: when -- when we discuss the 23-state questn.

you can look at pages 11 to 13 of the kinder morgan brief. you can look at pages 18 to 20 and 4 to 9 of the reply. and all of those go to this question about thadierence between 23 and 11. but i want to bring home the point herita rorting corporation justice kagan: i guess -- guess my reaction is a little bit the same a--hat i -- i gave to ms. sridharan, is, i mean, this is at such hier level of generality than you're makingheame argument now. you know, our briefs do not really addresshivery complicated cost argument. ms. stetson: ihi, justice kagan, the -- the cost argument, while -- while some of the metrics, i think, are mpcated, things like ozone modeling and so forth, the -- the bottom line is actually not that complicated. the boomine is what epa was supposed to do under the good igor provision was to figure out, as it said in eme homernd as it said it was doing re where is that cost threshold.

that word, "cost threshold," if you go back and look at the rule in eme homer, appes 5 times. but what the court did -- what -- what the epa did here with reecto non-egus in particular is to look at the question about avegeosts, which is a completely different su average cost is just how much do emissions control cost? does that seem like a reasonable number? okay, we'll apply theansee what emissions controls exist downwind. and i'll tell you the other thing important to -- justice kagan: i mean, the only point i was making -- and i don't want to push you too hard on this because it's not your fault this is coming in a weird posture. i -- i don't even seem the term "cost threshold" on these pages. msstson: i think the term "cost threshold" is -- is in t e's brief. it's a fundamental quti about the way that eme homer exists. if you look at the kinr rgan brief, there'a parate discussion of costs that i think is particularly releva t this. there are two different strands, i think, tt 're chasing here. one of them has to dwi the 23 vsus 11 question, what

happens when you take 12 states out. the other question has to do with how epa went about calculating costs. and i think i was moving from that fstuestion to the second. justice kavanaugh: on -- on that first questi, is discussion that your having now, i thought the broader point was epa was to t sip disapprovals were going -- were problematic and were goi tbe problematic and could be unlawful. and epa responded, you kw,o, they're not, but even if they are, we don't care, 's severable. that's a fineesnse if they then go on and explain why it still works if it's severable, but that'goose egg. they don't have an explanation ther ms. stetson: it -- it is a goose g. page 36693 of the federal register contains the entirety of- of what we'll call reasoning. justice kavanaugh: so l is discussion about the cost threshold, that's what they should have explained if they're gog to make the point, which is a big one, hey, even if 12 stat dp out, who cares, because it still works.

okay. show us how -- to justice sotomayor's question, show us how it works. but that'-- that's their burden, i think, to show -- to justify -- to not be arbitrary and capricus . etson: yes. and, in fact, if heritage reporting corporation -- if you look at that page that just cited, 36693, what you'll see is it says, "should any jurisdiction-specific aspect of this rule be found invalid, the epa views the rule as severable. should any industry-specific rule be found invalid, the epa rolls this rule -- views this rule as severable.” iss not intended to be an exhati list. justice sotomayor: i'm sorry, whose burden -- thataye their burden below. but the burden here as i understand it is on you to show this. and we go back to what jti kagan said. i read the -- i read these applications pretty carefully, and i didn't derstand this cost argumt all. and i'm really simplistic. i don't have a math degree, all right? if you're sharing costs among 23

people, your cost is going to be less. if you're sharing costs among 11 people, your cost is going to be more. so, since this plan doesn't change any allocations depending on the number of people who are in it, states are bound by the number heritage reporting -- that was calculad the larger group, how are the remaining states affecd the fact that their cost should have been higher, but it's not because it's been fixed at this lower number? ms. stetson: justice sotomayor -- justice sotomayor: i'm very simplistic. you know, stivided by 23 is always less than cost divided by 11 if urost is going to stay constant. ms. stetson: that's the question, though. d -- and i think, justice sotomayor, the answer -- justice sotomayor: but does it matter? meaning, if you' paying less on the wrong number because it was divided by 23, how could it be that on 11 your cost is ever

gointoe greater than that number, than the 20 -- ms. stetson: justice sotomayor, i -- i think so much oft s to do with the states that would be in or out of that cost calculus. so let's ppe just for -- to take your example, let's -- t's suppose -- justice sotomayor: no. my point is,ncthe states drop out, it doesn't matter what your responsibility is because the cost is going to remain the sa gen the nature of this plan. they're not changing e st on they've calculated the responsibility of the 23 ms. stetson: justice sotomayor -- justice sotomayor: if 12 are not paying it, what doest tter to you? ms. stetson: -- i think thats the bug and not the feature of this plan. the -- the cost was calculated where it was because epa looked at the aggratcosts of controls over that -- that federal register tehat i read you, hundreds of egus across all of the states, hundreds of industries' units across all of the states. it figured out what that

aggregate stas and then it decided to allocate obligations. so we keep talking about the end of that process, what -- what obgaons would change on a state based on taking some states out. juice sotomayor: it seems -- ms. stetson: but that's not -- justice sotomayor: it seems to -- ms. stetson: -- the right place to look. justice sotomayor: it seems to me heritage reportin -- tt if the aggregate is contributing to something and there's certain amount of people who for whatever legal reason have been taken out of the calculus, why should you pay for them or not pay for them if the problem is a national on really, not an individual one? ms. stetson: i think, justice sotomayor, that that'actually epa's argument, is that, you know, it -- it makes sense to impose thesemiions controls across these industries because it will reltn what epa calls meaningful reductions. now'd encourage you to look at page 36743 and 36747 to figure out exactly the scope of those

meaningful reductions of the '88 federal regist fal rule. what we're talking about when it comes to mniful reductions isn e order of a total of .66 parts per billion averaged across all of these receptors. now there's a biggerumr involved. that number is, if y a all of the reductions from the receptors omrizona to connecticut and you add them up, then you get aigr parts per billion number, but that's like ticketing me for speeding if i exceed the speed limit one mile p hour in 23 different states. but -- but t -- justice barrett: ms. stetson -- oh, i'm sorry. i wanted to talk about a different kind of cost. i just want tk about the costs that you have incurred thus far because theulhas been in effect, right, and part of your argument for emeen relief is the crushing costs and the risk of, you know, energy disruption, et cetera. what has been happening so far? ms. stetson:usce barrett, the industries that i represent have bn curring costs to try to start permitting, compliance, all rtof issues involving the run-up to installation of

these controls. but let me pause on this because i ink it also responds to a question, justice kagan, that yoasd, which is we -- we don't need to show in this posture cert worthiness. r do we need to show, justice jackson, you know, that iss an emergency. what we need to show is for a stay that he a likelihood of success on the merits and irreparable harm. justice barrett: but y dn't -- ms. stetson: and the iepable harm that we point to -- juicbarrett: -- you didn't detail that that i recall. like wt i mean, you -- you've talked about projected injury, projected costs that you're going to incur, but, presumablyan, the rule's been in effect for a while. why haven't u talked about that? i think you're kind of shiftin gears now. i mean, have you inc significant financial costs that are reonable? have there been -- justice jackson askeoh's counsel about whether there have been these kinds ofptions to this point. ms. stetson: so let me answer the cost question and the uption question if i can. the first on the cost is, if you lothe declarants particularly with respect to the pilines, you'll find explanations about what cos they have to incur in the next 12 to 18 months in order to stay in compliance with this timeline that we have pointed out is

completely unreliable, in addition to all of the other problems that we talked about. but, othquestion of irreparable harm in another spt, you know, what we are talking about is also the question of immediate reliability issues, and if you look at the brown declaration attached to the american forest & paper stay appcaon, you'll find that in the summer of 2024, he anticipates significant reliability problems becausef some immediate changes that need to be made to a particular plant that is icaleliability component of that particular system. he harms -- chief justice roberts: thank you, counsel. ms. stetson: -- are immediate. thank you. chief justice roberts: justice thomas, anythi? justice alito? justice sotomayor? justice kagan? justice jackson: yeah, i have a question why haven't you asked the d.c.

circuit to expedite their reew i mean, if you're suffering the harms that you're talking about and you're pending before that court, i gues'm still confused as to why we are the ones who are being asked in the first instance to look at this. ms. stson: justice jackson, we -- we did move for expedite briefing. we were not given the briefing schedulehawe wished. justice jackson: i thought you moved for a delay ining until after this court had decided. ms. stso we initially sought expedited briefing. weot get the schedule we wished. after the court granted argume in late december, we asked for a delay in order to impose some order on the process between this court and that court. e jackson: all right. well, let me ask you about your represtaons that you just have the sort of same ordinary stay burden s situation. i mean, surely, the supreme court's emergencdoet is not a viable alternative for every rty that believes they have a meritorious claim against the government and doesn't want to have to comply with a rule while they're challenging it. it seems to me that even just sort of herita rorting corporation irreparable harm, as we've defineitis insufficient to have the supreme court ask -- acting as a rsdecider on the merits of an issue that hasn't be aressed by the lower court. so can you help me to understa

what the burden should be this very unique situation? ms. stetson: the burden should be exactlyhathis court described in nken versus holder, justice jackson. justice jackson: but, in nken versus holder, was that a situation in which the lower court had noeven ruled at all on the merits of the claim? ms. stetson: it was a situation in which the order of an agency p to this court in a -- in a posture of a stay motion. or, actually, i think, that t involved the standard to be applied to -- justice jackson: right, but -- ms. stetson: -- a moti a stay. justice jackson: -- i want you to appreciate the diion that i'm making. ms. stetson: yeah. justice jackson: this is a situation where you have filea claim in a lower court, you're -- the d.c. circuit has not even looked at itanyou're asking the supreme court to essentially give a preewf its view of the merits. and i think that's quite extraordinary, and i'm trying to burden should apply on anme applicant in that situation and one in which we at least have a lower court ruling tha could show us and say: these people have made a mistake. we don't have that here.

ms. stetson: justice jackson, what we have is an agency order in which we are saying this agency made a gnicant mistake, in fact, several of them that are fault lines throughout the agency order. issue in nken.y what was at if you look at footnot nken, what the court says there is -- and -- and a question about staying an administrative order is just liuestion about staying a judicial opinion. you are staying the source of the authitto act until the court has an opportunity to consider it further. justice jackson: thank you. msstetson: now, even if -- if i could just finish? justice jackn:es. ms. stetson: even if there is some more toothsome anrd that applies in this circumstance, the fact that this is a national ler purported to be a national rule and costs as much as it cos,illions of dollars in compliance over the next 12 mont, think is reason enough. chief justice roberts: thank you, counsel. ms. n: thank you. chief justice roberts: mr. stewart. oral argumt malcolm l. mrstewart: thank you, mr. chief justice, and may it please the ur i'd like to make three quick points at the

outset. first, with respect to the interests of the state applicantsi ink it's important to bear in mind that at this stage of the proceedings, the a a lot more states on our side than there are on theirs, and 's heritage reporting corporation vital to bear in mind the equities of the downwind states because a's the whole point of the good neighbor provision of the canir act and the "good neighbor plan" that the epa implemented. and when we think about the interests of the downwind at, it's natural to think first of their humanitarian interest in the health and well-being of theiredents. but the downwind stateth are out of attainment also have a legal obligation to come io attainment by deadlines specified by the stu. and to stay the rule in its enre based on some theoretical possibility that the contours of an 11-state rule might have been somewhat different if epa had anticipated all the stays would be terribly unfair to the downwind states. the second point is that in addition to the severability language that justice kavanaugh referred to, e ithe preamble said that it was reserving judgment on whether several additional states should ultimately be included in the

plan. itaithat if any of the 23 states that were currently included heritage reporting --eved compliant sips, they could be takenutf the federal plan. and so epa anticipated from the outset that the plan was one whose geographic composition could change. and epa devised the requirements for each sten order that they would be workable if a smaller or a larger t states were ultimately covered. and then the last thing i wod say is it's true that the federal plan is nocuently providing the air quality benefits that a d hoped because the stays of the sip plan disapprovs an it's only reducing emiio from 11 states rather than 23. bu f those 11 states, the requirements that are imposed on sources are exacy e same as would have been imposed on sources in those 11 states if the full plan had been

implemented. and the -- the applicants have suggested that it's 's possible that the benefits associedith those requirements might have been diffenif epa had known that only 11 states would have been included. t ere's no reason to think that that's so. as we look at it, the difference between three and zero is the same as the difference betwe 10 and seven. if you think that the plan is onlyelering 30 percent of the -- the -- the 11 states are only delivering 30 percent of the benefits, they're still deveng that -- that same quantum of air quality benefit. i welcomthcourt's questions. justice thomas: mr. stewart, was there y ight put on the interdependence of the 23 states as far as the benefits of the plan and the cost to the individual states? mr. stewart: i think, when they feto interdependence, they're -- they're referring to ki of three topics that were discussed in the preamble. the first was epa to pns to point out that although it was engaging in a compcad inquiry to decide what emission controls could b

cost-effectively imposed on differentys of industrial sours,n the end, it was placing the same requirements on all of the covered states; that is, to do equity, it was sayg that power plants in indiana ed to come up to the same standard as power plants in texas. and so, in that ns the plan was interdependent in that epa wanted the same restrictions to apply to sources in all states, but that -- chief ste roberts: thank you. just if i could interrupt. at -- what's the smallest state among the 23? thsmlest state in terms of emissions? mr. stewart: i -- i'm nosu. ief justice roberts: well, assume it's the smalsttate. mr. stewart: okay. chief justice roberts: would -- would you have undtan this program if only that state was invoed mr. stewart: we -- we -- if -- if only the ste s involved, we might have not have thought it was worth the trouble to undertake such cprehensive inquiry. now, if all -- if 22 of the states had submitted compliant plans and only one was left, epa

woulstl have had a statutory obligation to promulgate -- chief justice roberts: you - you -- mr. stewart: -- for that state a pl -- chief justice roberts: okay. it's hard to stop you sometimes. (lghr.) chief justice roberts: if the current plan wi the current number of states involved regulates 11 percent of the egu emissions that you anticipated with the 23 states, would you have gone ahd with that? mr. stewart: i man, we would certainly -- again, ifhe had been any states, even one, with non-compliant plans, epa would not only have had the authority but a statutory obligation to promulgate a federal plan for that state and to promulgate a federal pl tt it thought would ensure that sources within the state didn't contribute siifantly to downwind non-attainment. and when i said earlier maybe if it was only a smaller set of states involved, epa wou tnk as a matter of cost/benefit analysis it's nowoh doing the whole enormous inquiry, we can do a -- a quicr d --

chief justice roberts: okay. got it. mr. stewart: but now that -- now -- chief justice roberts: i got it. i got it. mr. stewart: okay. chief justice roberts: n, en -- if -- if you prevail here, when will epaddss the question that's raised authether or not the fact tt 's a reduction in terms of the number affected a aeduction in the number of states, when will epa sit downndddress that, and when -- when will they give an explanation rather than the litigas re? mr. stewart: i don't think th they have any plan to do that, fit of all, because whatever they might have done if they had been studying only 11 states at the outset, now that they've done the whole analysis, there would nreason for them not to use what they found in chief justice bes: well -- mr. stewart: -- in devising a plan. chief justice roberts: well, it's something -- mr. stewart: but the other thing -- chf justice roberts: it's

someinnew that you only regulate 11 percent. and in terms of why i's necessary to look at this here, if you think it's an iornt question, it's because epa will not look at it until aerhe hundreds of millions of dollars of costs are incurred. mr. stewar ihink part of the reason that we won't look -- look at it is that the ground is still shifting; that i e earlier in the year proposed to disapprove the -- the plans several additional states, which, if that ultimately went forward as the -- the final decision, would relt in the addition of those states to the plan. we had ring from the tenth circuit at the end of the day on friday saying that that proceeding is being anerred to the d.c. circuit, and that could result in utah and oklamaeing put back into the federal plan. so part ofheeason it wouldn't make sense for epa to do a sorofround-up inquiry is that, just as it was getting done with that, it might have a new geographic composition to deal with. justice kavanaugh: but it could ritage reporting corporation have -- in response t comments that said the sip disapprovals were going to be problematic, epa could have come back and said: well, if some of the states are knocked out, the

requirements will still be the ven if there are only 15 states or even if there are on 10 states because and kind of explained that reasoning that is, as i understand it, absent. and the problem is 're not sure if the requirements would be theamwith 11 states as with 23. and -- and it's just not explained. mr. stewart: i -- i -- i think the comments were raised at kind of a low lel of specificity than -- than you might imagine. that is, there were comments to thefct that your federal plan is in trouble because val sip disapprovals are a condition precedent to the federal plan and the sip disapprovalser bad. and to -- to a point, those commenters have been vindicated. that is, sever stes have obtained staysf eir sip disapprovals, and the result has been that -- justice kavanaugh: but -- but, when heritage reporting -- when the epa came back, epa said severability. so epa understood the comment. mr. stewart: but i -- no, no, i think the comment was --

justice kavanaugh: epa understood the comme a came back and said, even if we have fewer states, we're gng to plow ahead anyway, and then the question i think that's raised is why and how. mr. stewart: i -- i -- justice kavanah:nd that's just kind of pretend nothing happened, just go ahead with the 11 states in this instance mr. stewart: i think epa understood the comment to be, to the extent that your sip disapprovals are challend d either stayed or ultimately struck down, your federal plan will be less effective. i d't think any commenter was saying specifically, if some dippve -- sip disapprovals are stayed, t plan will become arbitrary and capricious as to the other states. justice kavanaugh: the plan will become unworkable. the cost, the requirements might change. and when epa comes back, it

doesn't explain anything on that. mr. stewart: i mean, we -- we know tt e -- the requirements don't change. that is, epa imposedqualent requirements on different -- on power plants, on steelndtry sources, on pipeline engines, with respect to industrial facilities in the same source cagory that are located in fferent states. epa imposed exactly the same requirements. and the requirements that are imposed on sources in indiana and ohio -- west vgia is out for now because they got a stay -- but, in indiana and ohio, they' exactly the same as they would have been under an 11-state plan. the -- the only argument that thapicants have is that maybe imposition of those reirements on the same sources in the 11 states will prode wer air quality benefits downwind now that it's only the 11 states. now -- justice gorsuc m stewart? mr. stewart: yes. justice rsh: just a couple of simple questions. how often does epa use a severability provision like this? my -- my heritage reporting

-- understanding, and it -- and i just -- is it's very rare, it's a handful of times in the last 10 or 15 years out of the thousands of rules it's promulgated. is that right? mr. stewart: i -- i don't know how often they do it generally, but i do know that it is -- it's been a recurrent feature of these sorts of "good neighbor" plans that bece justice gorsuch: am i right, though, that 's only a handful of times over the last 10 or 15 years? mr. stewart: i -- i would be surprid it's only a handful, but i don't have informioabout -- justice gorsuch: i found an article that said between 2000 and 2014 it was seven times. isha-- do -- do you -- do you have any other information mr. stewart: i don't -- i don't have a oer evidence, but i -- i think, even with that -- justice gorsuch: okay, okay, okay, okay. okay. my other simple eson is, could -- could epa have done this on a heritage reporting corporatio ste--state basis? i mean, when a sip is -- fails, the obligation statutorily is for epa to come

up with a federal plan. was that an optionha-- that it considered? mr. stewart: i mean, in a sense, they did do that. that is -- justice gorsh:o, no, i'm -- they -- they did a 23-state plan. okay. mr. stewart: they did 23tate -- justice rsh: so i'm just asking, did they consider doing a state-byta plan? mr. stewart: they -- juicgorsuch: yes or no? mr. stewart: yes. justice gorsuch: okay. and -- and why didn't they do at? mr. stewart: and they did it. justice gorsuch: well, a right. mr. stewart: they -- they -- they -- they imposed -- justice gorsuch: i -- i -- i -- we're talking past each other. we have a 23-state plan that i understand has state by state. i get that. i'm just wondering, did they -- they considedog that without respect to the 23 states as a -- as a -- as -- as a collective? mr. ewt: i mean, if what you mean is did they consider issuing 23 different -- justice gorsuch: yes, that is my question. mr. stewart: -- federal register notices, they considered it. part of the reason they didn't do it is that they thought by making it an overall federal plan, the trading program for the power plants would be easier to administer, it would be easier for power plants in -- to tre emission allowances with power plants. justice gorsuch: got it. got it. thank you. justice alito: suppose they had done it state by state a h -- let's take ohio as an example -- had done the cost/benefit analysis for ohio separately and in isolation. is there -- would the

requirements that the state now faces be the sam mr. stewart: i think there's every reason to think thathe would be. i don't say -- think i could say that 100 perntbut i heritage -- ihink part of what is threatening about the -- the applicants' position is that the applicants haven't made an attempt to -- to offer a nuaed showing along those lines. they haven't done their analysis and said: given wherwere now, the following modifications of the plan would be appropriate. justice alito: what i understand you to be saying is that it might -- the math might turn out the same, but itoun't necessarily turn out the same. is that -- that's silly what you're saying? mr. stewar y, that's right. and -- and, certainly, what we have now is a closer approximation to what an 11-state would have -- plan uld have looked like than zero is. and what the applicants are asng for is zero, and that isn't an option atpa could have chosen as a matter of statute. epa was obligateas matter of statute to promulgate some plan

for each of the states that it founhafailed to devise compliant sips. justice alito: the -- justice kavanaugh: the fact -- justice alito: -- the severability -- juice kavanaugh: go ahead. justice alito: a simple question. the severability rule in the d.c. circuit as i understand i that it's presumptive, right? it's not conclusive. i mean, it could be -- there are circumstances where provisions are -- are interrelated and so that the presumptions overcome. why wouldn'th be true here? mr. stewart: well, i -- i think partly because the severability inquiry in the d.c. circuit kind of as i understand it has two prongs. the first is did the agency intend the rule to be severable along particular lines, d, second, if the agency intended it, can what remains function sensibly as itowrule. and, here, we know that epa intended it to be severable. the -- the other thing wld say about the possible rarity of express severability provisions

is it's been a recurrent feature these plans that plans -- states wou dp in and out, epa might promulgate a revised "good neighbor plan" and some of the at would be included in the revised plan and heritage -- some would stay in the orinal plan. so it was just understood as a feature of this typef rulemaking that when the composition of the plan changed, the requirements imposedn e remaining states would not change. epa decided in this rulemaking to make that statement explicit, to say epa regarded it as severable alongeraphic lines. anth at least pretermitted inquiry -- any inquiry as at -- as to what epa intended the rule to be, but that's always been understood to be e rule even when epa doesn't say that explicitly. justice ckn: so, mr. stewart, can i ask you just about their challenge? and i'm trying to understand it becae e rule was enacted originally with 23 states. and was there a challee that point about the number of states originally, when it fir was enacted?

mr. stewart: i -- i don't -- there were challenges to the antecedent sip disapprovals, and many of the at said we should not be under any "good neigorlan" because -- or in -- under any new "good neighbor plan" because we are already doing enough to heritage reporting corporation ensure thasources don't contribute significantly. at- justice jackson: so there was a possibility they coulde t? mr. stewart: there was a possibility and -- and those -- the mments and those challenges were really broht during the sip disapproval process. they were not brought as -- necessarily as challengetohe -- the federal plan. justice jackson: the and i guess i'm -- i'm -- i'm trying to undersndhe interaction between a challenge being brought when the rulis enacted and subsequent developments like judicial stays and how we think about that in terms of the ground shifting and whether th c even -- it's

even judicially cognizable i this way. ewart: yes, you -- you would think that once the rule is promulgated, once it's signed and finalized by t ancy, that if subsequent events provide -- somebody thinks provide good cause for epa to reconsider what it's done, we think it's a requirement as a matter of justiciability that a petion for reconsideraonr -- justice jackson: right, beus we -- we ordinarily would say, like, the agency can't supplement its reasons after the fact. we look at the rulathe time it's enacted and we determine whether or not there were promulgation problems, right? mr. stewart: exactly. and we thi, rst, that's a solid basis r nding a claim to be nonjusticiable. but, even if the court doesn't agree withha we think the fact that it is a kind of based on subsequent en should inform your consideration of the meri. that is, it should be the burden of the applicants to say fairly precisely here is why the diminution of geographic coverage logically warrants a change to the terms of the plan -- justice gorsuch: mr. stewart, on that point, so as i understand

it, a iginally proposed a 23-state solution, got some comments bacsang it's not going to be 23 states, it might be something less than that. it camba with a severability proviothat effectively says instead of a one -- a one 23-state solution, we're going he heritage reporting --3 lutions. and nobody got an oprtity to comment on that. and so part of the problem, it seems to me wt -- all these discussions about what does it mean when we have this applied to indivuastates, some subset of 23, is because nobody got chce to comment on that. w you might say it's a logical outgrowth, but it's ve different thing to say we have 23 plans as opposed to one plan. and all of these arguments, nobody had a chance to have comment on. what -wh do you say to that? mr. stewart: i guess part of

what i would say is what i referred to earlieashe -- the historical or legal backdrop; ats, it had traditionally been the case that the geographic composition of these plans would change, some states would drop out, some stat mht be added. it was understood that a state could always get o oa federal plan for -- by justice gorsuch: well, i'm t -- i'm going to push back on that just a little bit bau, originally, it was a 23-state solution. then you got comments that said: ah, some are going to fall out. d the response was a severability provision, as justice kavanaugh pointed out, without a whole lot of explanio and nobody got a chance to comment. i mean, what do u y to that, just to the point of the apa is all about an opportunity to be heard, and nobody got a chance to be hearonhe possibility that you're going to apply this -- this formula to one small state potentially, the same foulthat was dependent upon an analysis of an aggregate of 23? mr. stewart: i think i would say people had a chance to comment -- to make commenttohe effect of, if some states drop out, the plan will become arbitrary ancaicious or will need to be rethought as to the remaining states. but nobody was making that

comment. people were making the -- the valid comment that for any particul state, the legitimacy of -- alying the fip depended on a valid sip disapproval. and -- justice sotomayor: they could have filed a motion for reconsideration, herag coect? mr. stewart:esagain, because -- justice sotomayor: that'th avenue when you're not given an opportunittoublicly comment. mr. stewart: and that would be e time at which you could say, at least for now, here is the asof states that are out, and so you, epa, rather th comment on, as justice kagan was pointing o, at would happen in the possibly millions of permutations of metates being in or out, at that point, they could have said to epa: these are the ecic states that are out. we don't think the plan makes sense as to the remaining states justice sotomayor: mr. stewart, could justice alito: has there been a motion for -- justice sotomayor: i'm sorry. justice alito: go ahead. justice sotomayor: could you ccinctly state for me what are the common features in ts an to all 23 states? mr. stewart: i think --

justice sotomayo bause, as i looked at the plan, certain states werexempted out because they were already meeting their emission control goals. certaistes the epa determined would be out of it at a ceaipoint in time but not initially. mr. stewart: i'd -- 'd say -- justice sotomayor: so it was very individualized in many ways. so tell me what wasn't. mr. stewart: i think -- most of it -there were initial determinations about which states should iluded, but with respect to the states that were included, the -- the requirementser-- were almost -- were mostly uniform; that is, in 2024 and 2025, the plan would only impose new requirements on power plants, electric-generating units, and for the most part, during those years, those requirements would simply be that theow plants operate their existing controls to the maximum extent.

chf justice roberts: thank you, counsel. justice thomas? heritage reporting corporati justice alito: well,ustwo very simple questions. had there been mion for reconsideration by the epa, would there haveeeany deadline for the epa to rule on at mr. stewart: there -- there was one -- there were two motion raising this issue. one was a motion for reconsideriofiled by u.s. steel, which raised this issue and also raised a pretty complicated set of technical challeespecific to the steel industry. and there was otr filed by afpa styled a motion to stay th ao raised the 11 versus 12. there is no deadline. the a mechanism for arguing th epa has unreasonably been -- has unreasonably delayed, but that hasn't been invoked. justice alito: okay. the other quti has to do with the fact that this is an emergency application. we now receive many applications for stays. sometimes urffice seeks a stay. sometimes your officopses a stay. whats ur office's position

on the question whether in this context what the stay applan must show is some so o super-irreparable harm? is the applicant required simply tohow irreparable harm, or is it required to clear some much, much higher threshold? mr. stewart: i -- i don't think athere is any requirement that it clear a higher threshold, but i think in balance -- just showing irreparable harm is -- is not enough, particularly if there are countervailing harms on the other side. justice alito: no, i -- i understand that. mr. stewt:nd the other point i'd make about the stay they are seekinishat they really want st that will operate as a tolling principle. and by that, i meaif- if the court issued a stay tomorrow and en two years went by and we won in the d.c. circuit and this court denied cert and then the st w vacated in february of 2026, the usual consequence of vacatina stay would be that regulated

parties would therft be subject to all the same legal requirements as eyould have been nstay had ever been issued. but that's not what they want. what ty nt, a rule is -- is a rule that says, if that happens, then l e compliance delis in 2026 and thereafter will be extended by two years in light of the fact that a stay d en effect in two years. and so that would delay the operation of the most stringent requirements to the detriment of the downtates -- chief justice roberts: all right. thank -- thank you. . ewart: -- even if they ultimately win. iejustice roberts: thank you, counsel. justice sotomayor? justice kagan? justice kagan: yeah. i'm just wondering, mr. stewart, you knowhooften this kind of thing comes up. you know, there are a lot naaq, lot of air pollutant

stdas, and, presumably, there's a kind of constant altion by the epa of how to adjust those sndds and then what sips are -- what sips heritage reporting corraon need to chan and if -- if a fip is necessary. and thisee like a pretty regular part of the epa's busine a maybe a regular part of the d.c. circuit's business because that's true. and i'm -- i'm wondering if you would just say, is -- is -- there something unusual about this case? mr. stewart: i -- i mean, one of the ways in which this case is very differe fm eme homer is that in eme homer, you h t same pattern of epa rejecting 20-some state plans and then implementing a fedallan, and there were a very wide array of challenges to the feraplan in eme homer. they went through the d.c. circuit. they got utohis court. there -- there was very little litigation about the antecedent sip disapprovals. anso i think that that's one of the -- the unusual features of this case in comparison to prior cases involving od neighbor plans. justice kaga sthere hasn't been -- there -- there haven't been other circumstances in which this exact question has mep?

mr. stewart: right. i think, in the eme me context, there were three challenges tsidisapprovals, and i don't know that any of them were ultite resolved in the -- on the merits. and so there -- there was't this situation where preliminary orders enter ithe sip disapproval litigation caused people to argue about t plan sllational as to the states that remain. justice kagan: and do you know athe d.c. circuit intends to do or do you have a guess as to wt e d.c. circuit will do with respect to the interaction between the sip litigations that are happening across the count a the question before it? mr. stewar i- i don't have a clear sense of what they will do, and i think it will depend in part on how does -- do e sip litigation lawsuits progress while the d.c. circuit is considering t ce; that is, by the time that the d.c. circuit is ultimately ready to issue a decisionweay have some or all of the sip disapproval lawsuits resolved one way or the other, either in epa's favor in which there are moretas back in the plan, or if they're heritage reporting

resolved against epa, then the d.c. circuit can kind of take it as given that those steare out for the time being and can consider argen about what the consequences should be. justice kagan: thank you. chief justice roberts: justice gorsuch? justice kavanaugh? ste kavanaugh: if -- if 11 states rather than 23 were involved, does that affect the trading program? mr. stewart: it will affect it to the extent that thereilbe fewer trading -- potential trading pane. we have a declaration from a mr. goffman in -- inurppendix that says the trading program can stl rk robustly. it doesn't depend on the full 23 states being involved. we certainly had plenty of trading programs in the pa. justice kavanaugh: what does "robustly" mean? mr. stewart: i don't know if he used the tm obustly," but i

thk at he meant is it -- it is still a kind of real and viable oornity. heaid the price of allowances has not gone up. and -- and i guess the only other thing i would say about the trinprogram is it would be absurd to think that if epa had known erwould only be an 11-state trading program, it wouldn't have regulated es all. certainly, epa would have guted -- justice kavanaugh: i don't think -- yeah, i don't think that's the suggestion. but cai k you a question about maybe following up on justice alito's estions and some of the more general questions that have beenaid earlier about the standard, what we're doinger on an emergency stay, one t factors is irreparable harm. i think both sides in my -- i'm just giving you my view bh sides have irreparable harm, so that's a wash. the public interest, both sides have a strong publ ierest in my view. so then the only other factor on which weanecide this under our traditional standard is likelihood of success on the ri. in my view, that accounts r rt worthiness, but this is the kind of issue that wou bcert worthy ultimately. so check for me on that one.

then it comes wno likelihood of success on the merits. we can't do that without looking at the merits, right? mr. stewart: i guess the two thgs'd say in response -- ste kavanaugh: is that -- can i get a yes or no on that? mr. stewart: yeah. justice kavanaugh: can we -- can we deterneikelihood of success on the merits without at least taking a look and making some assessmenasest we can of the merits? mr. stewart: i -- i agree with that. the -- the two things i would y are, first, in determining likelihood of ultimate success onheerits, the court would not only have to -- to kind of reach its own judgment about is it arbitrary or not to have the current 11- versus 12-state disparity, it ulalso have to make some predictive judgment about whether that 11- versus 12-state sparity is going to continue into the future, and that would just require -- justice kavanaugh: rig. that's -- do you thinke ke a better assessment aor argument than we do without an oral argument? mr. stewart: i- hope so. justice kavanaugh: exactly. mr. stewart: and -- and -- and

then the other thing i would say to your point about irreparable harm, i -- ihi it is the case that both sides have shown some irreparable harm. i don't agree with the idea that if they both have shown irpable harm, it's a wash, because i think particularly taking into account the equities the downwind states -- justice kavanaugh: i agr -i agree with you about the equities of the dowi states, but there's also the equities of the upwind stateanthe industry, and i don't know how -- i mean, 're both like major. mr. t: and -- and -- justice kavanaugh: and so we have to figure out what to do in the interim. you said two years between n and 2026. that's what we have to figure out. should these costs be incurred for the next two years with the benefits to the -- the downwind , or should these costs not be heritage reporting incurred with the detriments to the downwind states? and the only way under our usual standardgure that out, as i see it, is to make the best evaluation we can -- and it's not easy, which is why we're here in my view -- of likelihood of success on the merits. mr. stewart: and -- and i guess

the only further point or mayb it's a recapitulation of my point about likelihood of success is the applicants have plan might have been different in sspects if it had been devised as an 11-state plan, but they haven't identified any te modification that they would -- justice kavanaugh: well, i think -- right. one a ts turns on -- okay, on the merits, they' arguing it's arbitrary and capricious. and one of the claicrbitrary and capricious conclusions is a failure to explain. it's t asonable and reasonably explained. and onofhe complaints they have, which we have to evaluate, is whether they're likely to succd saying that the rule was not adequately explained in considering the possibility that the sip disapprovals would be invalidated or stayed in the states and wouldroout a number of states. we have to evaatthat, correct? mr. stewart: you have to evaluate that. justice vaugh: yeah. mr. stewart: but, to -- to the extent that what they are saying is epa behaved arbitrarily in

not reconsidering its judgment teards in light of the fact that 12 states had been tan out, that's a different inquiry. justice kavanaugh: and have i missed any of the factors that we should be considering in evaluating an application for a stay? mr. stewart: no. just in terms -- justice kavanaugh: that's all i have. thank you. mr. stewart: okay. chief justice roberts: justice barrett? justice barrett: mr. stewart, i want to ask you about cert worthiness. sousce kavanaugh just pointed out that cert worthine can be considered part of assessing likelif success on the merits. i just want to be sure understand what the position of the solicitor general's offi is on that. in this posture, applicants say cert worthiness should not be a factor, that nken standard should just -- nken standard should just apply without respect to cert worthiness. wh is the solicitor general's position? mr. stewart: i think it's our view that you should consider cert worthesas -- in a sense as part of the -- the kehood of justice barrett: as justice kavanaugh framed it? mr. ewt: yes. and -- and the idea is, if -- if likelihoodf ccess means likelihood of success in this court, then that h tbe not just would the rule in their favoift took the case

but what's the chance that the court wod take the case. if you think that likelihood of suess is a predictive judgment about what the heritage reporting corporation justice barrett: would you urge us to take this case? mr. stewart: i mean,t pends on -- it depends on what -- (laughter.) mr. stewart: -- it depends on what came out of it. obviously, we wod and i'm sure -- justice barret sdo you think the case is cert worthy? mr. stewart: not in its current posture, but we don't -- but we d't know what the d.c. circuit is going to do. it's certainly possible that the c. circuit will issue a ruling for or against us that would raise issues of overarching importance, and so the cert calculus would -- would change then. we don't think that the question s a required to put the rule on hold and impose no restrictions while it considered what cng might be warranted in light of reduced geographic coverage, we don't think that quesons cert worthy.

justice barrett: and do you age -- justice kagan pointed out some of the stuforhe vehicle problems that might be attendant in this applicio do you agree that those are factors that wshld consider in assessing cert worthiness in this posture? mr. stewart: yes, because, as i say, part of the presentation at oral argument was to the effect that the cost-effeess calculus might have been different if epa had only had 11 states in mind. and to the extent that's -- that'an empirical judgment that's just going through the scientific evidence, that doesn't seem like something at would ordinarily be a cert -- a supreme court case. juice barrett: thank you. chief justice roberts: justice jackson? e jackson: yes. i guess i -- i don't understand whthe usual traditional standard could possibly suffice this situation. i mean, justice barrett and justice kagan suggtecert worthiness as another consideration. but don't we have to have something so that we are not -- we, thsueme court, is not supplanting the entirety of the heritage reporting corporation -- lower fer court system when we're looking at cases of this nature? mr. stewart: yes, and -- and, i mean, it may be that kind of the

very unpredictability wt will happen in the.c circuit leads to unpredictability about whether this will ultimately be a cert worthy case. and so it may be that -- justice jackson: so cert worthiness could be another way of saying it. i mean, i prefer to think about whether or not there's something extraordinarily -- extraordinarily harmful going on situation that would warrant, in this situationin this case, the supreme court ting as the first decider of the merits of an issue l this. i mean, that seems to me to be truly extraordinary. and ife e going to entertain every motion that someone has about beinhaed or whatnot in the lor urts before any of the lower courts even get the pounity to talk about it, i -- i feel like we have to have something that guides r consideration of when to do that. mr. stewart: we would agree with that and we would just add the

point that this is not just a case where the other sids to make an extraordinary showing. it is a casehe, if a stay is entered and the government ultimately prevails on the merits, we in the downwind states will suffer a very high, high degree of continuing harm ev after the stay is vacated. justice jackson: thank you. chief justice roberts: tnk you, counsel. ms. vale. oral argument of judith n. vale on behalf othstate respondents ms. vale: mr. chief justice, and may it please the court: in the odeighbor provision, congress protected downwind states from pluon emitted in upwind states. a stay of e od neighbor rule would undermine that statutory goal and the public interest by sending ozone pollution into downwind states, including connecticut, wisconsin, and new rk, that receive substantial pollution from the particular upndtates that are currently in heritage reporting rporation

who the rule, including ohio and indiana. the harms from a stay willlo to both the residents of downwind states, whoil experience health dangers, and to downwind industry, which pa increased costs to compensate for upwind pollution and comy with the current, more stringent standard. for example, connecticut sources currently pay up to $13,000 per ton of ozone precursor reduced while, in the near term for power plants under this rule, just to turn on controls costs about $1,600 per ton. by contrast, apply -- and a's why applying the rule to the upwind states is relativelle expensive and harmful. i welcome the court's estions. justice thomas: w you arrive at that conclusion that it's less expensive for the upwi stes? ms. vale: it comes from, i think, two things, one on either side of the balance. for the upwind states, the rule is desigd the way it -- it defines "significant contribution" is for sources to do the relatively less expensive controls. i understand that there are still costs, but thear relatively less expensive because it's based onavg

upwind states do controls that downwind sources and many other sources acro t country have already done, for example, like turning on pollution controls on power plants that are already installed. that's the lowest of th low-hanging fruit. by contrast, downwind sources, as they get the upwind pollution, they have to compensate f i but they've already exhausted a lot of the less expenvetrategies, so they need to turn to more and more expensive strategies to find any further cuts. d e of the reasons why sources have exhausted their less expensive options is cause of the statutory consequences of non-attame. so, in section 7511, bieve (a), little (a), it is the clean air acth puts on more and more stringent requirements onto

downwind sources as states move into worse and worseevs of non-attainment. so more and more sources need to put on controls, sll and smaller sources need to put on controls, and the controls themselves get me ringent. by -- and -- and -- and i think that that's how we getntthis situation for the downwind sources. and the ru rht now continues to provide substantial and meangf benefits to the downwind sources. it is not a shell or a disasr. and that's because upwind pollution is not evenly distributed as it goes downwind. so the downwind states that nelly get a lot of pollution from the 11 states in the rule now still stand to get a lot of benefits. so, for example, in wisconsin, the ars at struggle with air quitget approximately 40 percent of their ozone from the 11 states currently in the rule, 13 percent from indiana alone. and for connecticut, the current scope of the rule gets it 65 percent of the emission reductions compared to the full scope of the rule.

and that riefor downwind states is also urgent because of the way non-attainmentor. non-attainment -- those deadlines keep on coming rerdss of whether good nehbor obligations are fulfilled, even though the deadlines, as the d.c. circuit has made clearar supposed to be aligned. we -- chief justice roberts: and what the -- they're- they're asking for is simy opportunity to make the argument before the agency. anas i understand it, the burden on the agency is simply to provide a rational or reasonable explanation. soou're making arguments on the merits. weo't have those arguments made or substantiated on the record by the epa. ms. vale: well, i think there -- the path that congress laid out for raising these arguments when they arose aerhe end of the comment period is the petition for reconsideratn. a lot of theosanalysis that i'm giving you was considered by epa.

that's -- that's partf e rule. mean, the -- part of the whole idea of the rule is thatpwd states and upwind sources really, that eacsoce -- each source needs to do its own significancoributions of pollution, needs to take care of its own, and th's defined by what each source can do using certain coro. it's not defined based on some magic number of emissions reductions from 23 states. and thk we have every reason to believe that the cost resholds and the -- the controls that went intth stringencies would be exactly the same, no mtewhether it was 23 or 11 or five states, becausmo of these controls are well established. th've been around for over 25 years. and downwind sources arelrdy using them to try to reduce their emissions. the -- the rule is tinto get the upwind sources not to do technical innovation or

newfangled things but to get them into the middle othe pack that downwind sources are already doing. justice alito: suppose that one of the states that is still subject to thireirement is paying too much, more than it would veaid if the plan had been calculated based on that state's situation alone or bed jt the states that remain subject to the requirement at this time. i just want to make re understand your argument, the argument that you began with. was -- was it your argumenth even if that is true, the -- the detriment to new york would be heritage rorng corporation enough to twgh the fact that those -- that state or those remaining states are paying what we might say simply, in simple terms, too much? was that part of your -- was that your argument?

ms. vale: that is part of the gunt, yes. yes, because it's -- it's looking at -- and i think what should drive the court's analysis in this unusual stay posture, what should inform it, ishetatute. and the statute has already done a ttle bit of this weighing of the interests between states and is highly protective. the point of thetate is to protect downwind states, not just the residents -- of course, that's imrtt -- but also downwind industry from the free ridingf wind states. justice alito: well, that might be true, but does that answer the argument that the epa should have considered what you -- that -- the argument that you just made? d -- ms. vale: i think epa -- justice alito: -- did it do that? ms. vale: yes. s, epa did consider that. that is part of the fundenl idea of how -- how cost -- significant contributions of pollution is defined. the point of it tsay let's get the upwind sources doing the relatively less expensive controls tt ny downwind sources and -- and sources all around the country are already doing. so that wafuamental to the rule. and i think it is also a

fundamental understanding of the rule that states can come in and out. we have had experience with this under manyri ozone transport rules. they were all done in this sort of multi-state way. i do think epa could have written 23 different federal register notices, bui n't -- that -- that seems like fo or substance. we have had states drop out. we have had one state, georgia, remaininin trading program by itself. and if i could just maybe explain why the trading program is not interdependent in the sense that i think applicants are making it. two -- two -- two things there. fit all, as states drop out, supplandemand are going down roughly even. so, while there are fewer allowances, there are also fewer mark pticipants asking for -- wanting allowances. send, it is -- the states are not the market participants. we are not left with 10 market participants. its the power plants that are the market participants.

there arcuently about 360 market participants in the ading program. that's why we have the declarations that tt's the reason why the declarations are all able to say:oo it's working robustly. chief justice roberts: well -- well, i mean, yo-- ms. vale: prices are declining. chief justice roberts: -- you chief ste roberts: well -- well, i mean, you -- msva: prices are declining. chief justice roberts: -- you say, what, it's not essential th they're interdependent? well, what they said in the the rule was that they were asurable and meaningful cumulative improvementinzone levels at downwind receptors when the effects of the emissions reductions are assessed collectively across the hundre oegu and non-egu sources. ms. vale: it is true -- chiejuice roberts: so there in the rule what they said is you look at it cumulatively and collectively. . le: well, i -- that is one piece of the step 3 analysis. and i think what epa is saying there is that, yes, they do look when they're doing the rule, is this going to have a meaningful efct you don't want to do a rule that's not -- that turns out it's not doing anything. then epa will probably have to go back to the -- the drawg board and make it more stringent in order tha a meaningful effect.

but, ultimately, we owhat we continue to have a meaningful effectecse the costs and the emission reduction benefits that come out of ohio and indiana and all of the states still in the le remain exactly the same -- justice gorsuch: ms. vale -- ms. vale: -- no matter whether there's 23 states or 10. justice gorsuch: ms. vale, if -- if a lower court had entered a stay here, would you have sought cert? ms. vale: i don't know. i n't know. justice gorsuch: would you he thought it cert worthy? ms. vale: perhaps. justice gorsuch: i would have thought eith w -- ms. vale: but i think -- justicgouch: -- somebody's going to think this is cert worthy. msvale: but i think it's the applicants' burden here -- stice gorsuch: of course. ms. vale: yes. yes. to say -- justice gorsuch: of ur. but you would have borne that burden the other way around and -- ms. vale: correct. justice gorsuch: -anthis is a really important thing to both sides. ms. vale: i understand that. but i think that the issue here that they are raising in this stay posture is this epa should have conded after arising events that are still changing today --

justice gorsuch: sure. sure. valeand so i don't think justice gorsuch: and it just would have been yourn rather than theirs. ms. vale: correct. justice gorsuch: okay. thank you. ief justice roberts: thank you, counsel. justice thomas, anything justice alito? justice sotomayor? justice sotomayor: so you could havelost? [laughter] chief justice roberts: justice kagan, anything further? stice kavanaugh? justice barrett? e jason? okay. thank you, counsel. ms. stetson, rebuttal? rebuttal argenof catherine e. stetson on behalf of the industry applicants ms. stetson: three quick points, your hons,irst on emissions, second on the other fault lines and the ru tt i mentioned, and the third on equities. the fit what you heard ms. vale just say is that the puose of the good neighbor provision is to protect downwind states from emissis upwind states. no. the purpose t good neighbor provision is to reduce the signifancontribution that upwind states make to downwind states. and that why -- that's why 11, chief justice roberts, versus 23 matters. that question about how many is a collectivehomany hundreds

of egus, how many hundreds of non-egus that are being regulated here for the first time, by the way, how many of those feed into the alis is exactly the problem. we didn't have to seek reconsideration, justice gorsuch, on the question about whether epa had significantly explained itself. weaid the issue, we sought reconsideration in fact. epa still hasn't acted on coideration, which you can see in note 9 of the goffman declaration. we had no obligation to do anhi more than that. it was clear in the rule as evidenced by the fact that epa put in a severability prisn announcing its intention that something be severable. not an explanation b a intention. if there are 11 states in this rule, the answer to your question, mr. chief juste,s

that epa would have d ask whether or not there still would be a signica contribution, not just an air quality benefit downwind but a significant contributioniven the costs on the industries and power points in those -- plants in those states. e ult lines throughout the rule i've already mention. i mentioned in the opening it es to your court's second question. there are over-control issues here in addition to the reliability issu that were ignored by epa. and the last thing i'd say is on the equities. the equities are not balanced, justice kavanaugh. the equities here e there are hundreds of millions if not billions of dollars in cost over the next 12 to 18 months coupled against 10 percent of the .66 average part per billion contribution. this is not a very, very signifandownwind problem. this is a -- chief justice roberts: thank -- ms. stetson: -- miniscule obm. thank you. chief justice roberts: thank you, counsel. the case is submitted. >> today, linda thomas greenfield discusses the pacific islands, watch live on 3:00 p.m.

-- at 3 p.m. eastern on c-span, c-span now, four c-span.org. tonight and all this week, we show recent supreme court cases that the court has until the end of the term to rule on. they will air each nighto 9:30 eastern on c-span. here's a look at the schedule. tonight, we begintwo cases that could result in the weakening ofederal agency rule processes and the ability they have to turf or law. tuesday, a cat challenges the provision of a trump era 2007 corporate law. wednesday,ourt assesses the legality of a ban on bump stocks that modify firearms. thursday, another second amendment on whether people under domesticnce protective orders calelly fire friday, two cases on social

media content in the ability of states to regulate content. watch the oral arguments all week, tonight, 9:30 on c-span. you can find all of our supreme court coverage on our website, c-span.org. 3 c-span is your unfiltered view of government. we are funded by these television companies and more, including charter communications. >> charter is proud to be recognized as one of the best internet providers in we are just getting started, building 100,000 miles of new infrastructure to reach those who need it host. >> charter communications suorts c-span as a public service, along with these other television providers, giving you a front ro seat to democracy. >> coming up, officials discussed the importance of protecting human rights

defenders who operate online, including discussions on online platforms and myanmar. this is hosted by the center for strategic and international studies. [chatter] [chatter] >> good morning, everyone. welcome to the center for strategic and international studies. i'm so delighted to have you here with us today and delighted to have those who are all tuning in online for this very important discussion of the launch of the united states