WEST VIRGINIA, ET AL.,  Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,  Respondents
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Lindsay S. See, Jacob M. Roth, Beth S. Brinkmann, Elizabeth B. Prelogar

John G. Roberts, Jr.: We'll hear argument this morning in Case 20-1530, West Virginia versus the Environmental Protection Agency, and the consolidated cases. Ms. See.

Lindsay S. See: Mr. Chief Justice, and may it please the Court: In Section 111 of the Clean Air Act, Congress directed EPA to partner with the states to regulate on a source-specific level, which means identifying measures particular buildings can take to reduce their own emissions. The D.C. Circuit gave EPA much broader power, power to reshape the nation's energy sector, or most any other industry for that matter, by choosing which sources should exist at all and setting standards to make it happen. No tools of statutory construction support that result.

First, electricity generation is a pervasive and essential aspect of modern life and squarely within the states' traditional zone.

Yet, EPA can now regulate in ways that cost billions of dollars, affect thousands of businesses, and are designed to address an issue with worldwide effect.

This is major policymaking power under any definition. And though Respondents argue EPA can resolve these questions unless clearly forbidden, this Court's precedents are clear that's backward.

Unless Congress clearly authorizes it, Section 111 does not stretch so far, and Congress hasn't done so here. Second, the words Congress did use in the context where it placed them confirms Section 111's traditional scope.

Read together, key statutory terms like "the requirement standards before individual sources" and "focused on their performance" show that Congress did not green-light this transformative power. And, finally, standing is no reason to avoid the merits.

We're injured by a judgment that brings back to life a rule that hurts us and that takes off the books a rule that benefits us.

Respondents' arguments sound in mootness, and it's their burden to show that EPA's voluntary cessation and a -- and a stay are enough to end the case.

They're not.

We're asking for the classic appellate relief of undoing what the court below did, and this Court has full power to give it. And the weighty issues at stake confirm that it should.

In contrast to EPA's important but environmentally focused role, Congress and the states are able to weigh all of the competing factors and constituencies in play.

The lower court was wrong to short-circuit that process here, and the Court should reverse. I welcome the Court's questions.

Clarence Thomas: You start your argument with the major questions doctrine.

Do you need that to win?

Lindsay S. See: We do not, Your Honor.

We think that the text is clear.

The Court can use any of the tools of statutory construction.

It can focus on the particular words in context. But major questions and the clear -- and the federalism clear statement canon are also textual tools of construction, and we think the Court can and should use that as well.

Clarence Thomas: So what is the difference between clear statement and major questions?

Lindsay S. See: So there are multiple versions of the clear statement canon.

Major questions is one of them.

The federalism canon is a different version of the clear statement canon.

The clear statement part simply says what we assume would be in the statute, how clearly Congress would speak before courts are willing to find this agency power.

So major questions is one version of the clear statement canon.

Clarence Thomas: So what -- what factors would we take into account to determine which canon or which approach we would use?

Lindsay S. See: I think it's important to look at what the constitutional norms in question are.

Canons like major questions are grounded in separation of powers.

It's grounded in commonsense presumptions about how legislators would operate.

It's the words that we expect Congress would put in the statute. When this Court deals with major questions, it is focused on the nature of the power at stake.

Here, because there is transformative power that crosses industries and goes outside of EPA's core competency, this is -- this is the area where this Court has been willing to apply the major questions canon before.

And we argue that it should do so here.

Clarence Thomas: No, I -- I -- I think I was just trying to get a little bit more specific.

What is it about this case that suggests we should use one or the other canon?

Lindsay S. See: Certainly.

The power that EPA was claiming -- and the Clean Power Plan is one example of that power -- and the power the D.C. Circuit gave it to go further would be a new and transformative variety of agency power. That is a -- a major policy question.

And so that is the sort of thing that courts are not willing to assume that Congress implicitly delegated those sort of questions.

Clarence Thomas: So does a statute -- does the text of a statute change simply because the problem is a big problem?

Lindsay S. See: No.

No, Your Honor.

It's not a matter of the text of the statute changing.

The clear statement canon is a text-based canon.

It looks at the words that we would expect to be in the statute. Now, certainly, if the statute clearly allows this power, we're not asking the Court to ignore that because we would say that actually satisfies the clear statement.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: I just want to follow up a little bit because I'm not quite clear what your position is. So the major questions doctrine you would categorize as simply a variety of the clear statement doctrine?

Lindsay S. See: We would, Your Honor.

We would say that the major questions doctrine is satisfied when there is a clear statement in the statute that said that Congress, in fact, intended to give this power to the agency.

John G. Roberts, Jr.: Some -- some of the briefs talk about it as being -- I don't quite know what the right word is -- being informed by constitutional questions of -- of non-delegation or delegation.

Is that part of your submission or not?

Lindsay S. See: We have argued non-delegation under the constitutional avoidance canon.

We think that if Section 111 is read appropriately with the limits Congress put in, there is not a delegation problem.

But we do recognize that there's significant overlap between major questions and non-delegation. They both get at the same constitutional norm of separation of powers, of what Congress would and would not be presumed to delegate to an agency. Non-delegation is asking a slightly different question of, can Congress delegate and has it given sufficient guidance? Major questions is asking the threshold question, in fact, did Congress delegate? And, here, no matter what the answer is on the non-delegation question, Congress did not actually delegate.

Stephen G. Breyer: The --

John G. Roberts, Jr.: Go ahead.

Stephen G. Breyer: One problem that I have is that there is a word in the statute which I think is important.

It talks about a system.

And so EPA has to have a system for existing plans. So what is that system? Now I -- I tend to agree with you that normally, if it's -- if you interpret the word "system" so that it totally, a hundred percent changes the opposite -- the economic system of the United States, that's a little far.

It's hard to believe that Congress delegated that. But you want to jump from there to the idea that it has to be plant by plant.

Now that's -- at that point, I said, but, gee, it's easy for me to think of a system that they might choose, EPA, that isn't plant by plant or isn't within the fence but isn't really a big deal. You want one? I mean, you know, it used to be years ago that you have -- under the PJM system, that you have computers, and they still do, they turn on, you know, they -- they turn on the electricity plants least cost order --

Lindsay S. See: Right.

Stephen G. Breyer: -- across the day. Okay.

So many companies put in time-of-day metering, and, therefore, it's cheaper if you get your electricity at night and store it.

And so EPA might say: Hey, when you're doing that, PJM or -- this isn't plant.

This is the computer for about a hundred plants. When you do that, add a cent to your presumed cost to reflect the fact that it's coal-based, or subtract a stent -- a cent when it's L&G-based and subtract two cents if it's solar-based.

Eh, that's not a big deal.

And if you think two cents is a big deal, let's make it a quarter of a cent, okay? And so there we are.

I have something that's fairly minor Congress might well have delegated, and it is not within the fence.

Lindsay S. See: Your --

Stephen G. Breyer: So I got your basic point, but it doesn't lead, it seems to me, to your basic conclusion.

Lindsay S. See: Well, and, Your Honor, if I could add to that point.

The source-specific or inside- and outside-the-fence-line shorthand, that itself is not the major question here. That's the limit that Congress put in the statute. If you remove that limit, that's what shows how major the power at stake here is because, once that limit is gone, EPA is not limited to something that's simply two cents or a quarter.

EPA can make --

Stephen G. Breyer: Oh, not at all.

You can use your system.

I mean, Walker -- what was the case we -- I put all -- I wrote all that, you know, and the Court actually adopted it.

I mean, you look at the individual delegation and you say: Well, do we really believe on the basis of a number of factors, not just whether it's a big deal, that Congress would have delegated this power to this agency?

Lindsay S. See: And -- and --

Stephen G. Breyer: That's what judges do, so let them do it.

Lindsay S. See: And it's certainly true that the Court does look to a number of factors.

The Court's major questions cases have looked at those.

But, again, this isn't simply the matter of the particular exercise of agency power in this rule here.

That's not how this Court has proceeded. If you look at the Brown & Williamson case, for instance, this Court was faced with a particular tobacco marketing rule, but, when determining whether it was a major question, the Court looked at how far the theory of statutory interpretation --

Elena Kagan: But I think what Justice Breyer is suggesting is that that works against you rather than for you.

In other words, inside-the-fence reform can be very small or it can be catastrophic. And inside the fence, there are inside-the-fence technological fixes that could drive the entire coal industry out of business tomorrow.

And an outside-the-fence rule could be very small or it could be very large. So the rule that you're saying sort of emerges from this statute, which is an inside-the-fence/outside-the-fence rule, bears no necessary relationship to whether a -- a rule is major in your sense of expensive, costly, destructive to the coal industry.

It just bears no necessary relationship to that at all.

Lindsay S. See: Your Honor, I don't think that's true because there are, of course, limits Congress put in the statute, and they make sense with this source-specific limitation. EPA has to focus on systems that are achievable, lead to achievable emission reductions that are adequately demonstrated. Those are constraints that make sense for a source-specific requirement. They don't make sense when EPA is regulated at a grid-wide or nationwide level. If EPA says we want to reduce coal plants significantly, well, of course, that would always be achievable in the sense it will reduce emissions. So -- so the actual limits Congress wrote into the statute don't make sense without reading all of the words that Congress put in, which is this is a statute that's focused on what particular sources can do to make their own operations more environmentally efficient.

Sonia Sotomayor: Counsel, I -- I want to go back to a version of what Justice Kagan and Justice Breyer are asking, which is, when I look at the EPA as a whole, I see them, Congress, using very specific terminology when it's looking at an existing source and technology for that source. So, in a number of provisions, it says very clearly an existing source that has installed the best available control technology. That's very much inside the fence.

An existing source that has installed the best available technology.

That's in at least two provisions. But, here, we have something much broader and very different words that say the best system and doesn't use at the source, only for the state, but not in its definition of what the EPA has to do.

So how do I give meaning to those two different words? And then, secondly, assuming that answer, okay, Massachusetts versus EPA said that carbon dioxide is a pollutant under the Clean Air Act.

So that's clear, right?

Lindsay S. See: We're not challenging that, correct.

Sonia Sotomayor: All right.

You're not challenging AEP Connecticut, where we said that Congress clearly delegated to the EPA the discretion about whether and how to regulate carbon dioxide, correct?

Lindsay S. See: We are not disputing the portion that said Congress spoke to whether and how.

We are disputing that how means that EPA can do that --

Sonia Sotomayor: I understand --

Lindsay S. See: -- by any means necessary.

Sonia Sotomayor: -- what you're saying, but this is really a step further than anything we have said before.

All of our other cases, whether it's regulation of tobacco or regulation of evictions under major questions doctrine have not addressed the how. Now we're going to the how, and you want us to look at the how.

Now Justice Kagan said inside-the-fence-line requirements themselves can lead to generation shifting because some of those could be so expensive that they force generation shifting. So, if that's the case, how do we define this major question? It can't be that what Congress has chosen might lead in or outside the fence because there's some out-of-fence activities that don't necessarily lead to generation system changing.

Biomass, which the ACE Rule precluded, only requires certain plants to burn wood, and so that won't force generation shifting. So what's -- tease out for me more precisely what this major question doctrine involves --

Lindsay S. See: I think that --

Sonia Sotomayor: -- because I can't see it as being in and out of fencing for the reasons Justice Kagan said --

Lindsay S. See: And -- and -- and --

Sonia Sotomayor: -- and for the one that I just pointed to. So go back to two things.

How do we give meaning to the different use of words in the statute? And, two, tease out for me what's a major question here.

Lindsay S. See: Certainly.

And -- and so I think looking at how do we give meaning to those words, "system" is a broad word.

We don't dispute that.

But Congress paired it with "limits." This Court always reads statutes as a whole.

It doesn't look at isolated words and give them their hypertechnical meanings. In the UR decision, which also interpreted the Clean Air Act, this Court was very clear that the particular words need a narrower and context-focused interpretation. So, if we look at the rest of the words in the statute, that it be for an individual source --

Sonia Sotomayor: It doesn't use "limit" there.

It says "best system of emission reduction." I don't read the word "limit" there.

Lindsay S. See: Well, Your Honor, reduction is different from elimination.

We know that Congress knows the difference between them because, in Section 112, right next to 111, Congress did use the terms "eliminate" and "prohibit." This Court gives meaning to the different words in --

Sonia Sotomayor: Well, I wish --

Elena Kagan: Well, this is a system.

Sonia Sotomayor: -- I really wish there was any regulation that eliminated carbon dioxide, but even this one might eliminate it from some sources, but this regulation doesn't eliminate the -- those emissions generally.

Lindsay S. See: The D.C. Circuit's interpretation of this statute doesn't give EPA anyplace where it has to stop.

The fact that it puts self-imposed handcuffs on in the Clean Power Plan does not mean it would need to do that in the next rule. That's because the --

Elena Kagan: Well, it does give a place to stop because the statute also says you have to consider cost and you have to consider various other factors.

So this is not a kind of, you know, regulate to the end of the world kind of statute.

It very clearly says that there are other constraints that have to be considered to impose reasonable limits.

Lindsay S. See: Well, Your Honor, and I agree with you if we are talking about measures that a particular source can take because then you would be able to look at cost and make a reasoned determination. But, if EPA is looking at the national or grid-wide level and if it's dealing with an issue as massive as climate change, it's hard to see what costs wouldn't be justified.

So that cost limit isn't really serving as a limiting factor if you take away the source-specific limitation that the rest of the words in the statute clearly put on EPA.

Neil Gorsuch: Count -- counsel, one argument we haven't addressed yet and I just want to make sure we do before your time expires is the question of standing or mootness.

Lindsay S. See: Of course.

Neil Gorsuch: And the solicitor general makes a -- a strong argument that states are not harmed here because, under the current state of affairs, there is no rule in place. And how could you be better off with the ACE Rule in place?

Lindsay S. See: Your Honor, if I may answer that question?

John G. Roberts, Jr.: Certainly.

Lindsay S. See: The solicitor general agrees the relevant Article III question is whether we have injury traceable to the judgment and whether the Court can redress that.

And we do. The effect of the judgment is that the Clean Power Plan repeal is unwound and so that rule would come back to life. And that certainly injures the states. Even though nationwide the emission levels have been largely met for the Clean Power Plan, 20 states have not met them.

So there's no real question that we are not injured by the judgment. Anything that happens afterwards, a temporary stay or voluntary cessation, is in mootness, and Respondents have not met their heavy burden to show it's impossible for the Court to grant us any relief, and it's certain that we will not be harmed in the future.

Sonia Sotomayor: How are you --

John G. Roberts, Jr.: Thank you --

Sonia Sotomayor: -- different than --

John G. Roberts, Jr.: Thank you, counsel.

Sonia Sotomayor: -- EPA -- oh, I'm sorry.

John G. Roberts, Jr.: We'll get to you in a moment. Justice Thomas, anything further?

Clarence Thomas: Nothing.

John G. Roberts, Jr.: Justice Breyer? Justice Sotomayor?

Sonia Sotomayor: How is this any different than EPA versus Brown? There, the EPA announced while the case was pending that it was planning to modify a regulation that had been challenged.

The government asked, like you're asking, that we offer guidance to the EPA, like at various points in your brief, you talked about guidance for the rulemaking that's taking effect.

And we strongly said that would be an advisory opinion.

The government has disavowed that it's going to re-adopt the CWA, and it -- we said new regulation's coming. How are you different from the EPA, number one? And, number two, I'm not sure how the ACE Rule, which has also been -- the vacatur of it's been put on hold waiting for the new rule -- how that hurts you either, because the new rule is going to supersede both.

Lindsay S. See: Well, Your Honor, first, we do not know what EPA will do at the end of the rulemaking.

Sonia Sotomayor: Oh, that's absolutely true.

Lindsay S. See: But that's the standard this Court uses.

When we're dealing with voluntary cessation, when the next rule is entirely in the control of Respondents, this Court say the case is not moot unless it is certain that we will not be harmed.

Sonia Sotomayor: This is not a mootness question.

This is an advisory opinion question.

That's how the EPA discussed it.

Lindsay S. See: Of course, Your Honor.

And in that case, we would look towards the prudential factors.

I think it's important to note it is routine for this Court to rule on the merits of agency cases when rulemaking is ongoing.

Even further in this case, we can look to the Waters of the United States cases, the 2018 decision in National Association of Manufacturers.

There, the agency was even further along here.

There had been two NPRMs of new proposed rules, and this Court still proceeded to give an answer on the merits. I think the prudential factors are very similar here.

That is another area where, over multiple administrations, there had been significant agency -- agency waffling on the decision involved and what the standard would be.

And this Court found that it was not a mootness question.

In fact, this Court said the parties did not argue it and for good reason. And I think the same prudential factors weigh strongly here.

This is a clean legal issue, and this is an area where the parties need certainty.

The states and regulated parties make decisions decades in advance.

So there's no jurisdictional bar to the Court giving the answer, and there are very strong prudential reasons why it should.

Sonia Sotomayor: How does it change being an advisory opinion?

Lindsay S. See: It's not an advisory opinion because the Court can still give us the relief of undoing the actual judgment.

The Clean Power Plan repeal would, in fact, be final and the ACE Rule would come back. Your Honor asked about the ACE Rule, how it helps us.

That is a rule that is respectful of the limits Congress wrote into the statute.

It's highly deferential to the states. So that is a rule that helps us. Even if EPA were later to change the rule, they would still have to have the additional burden of adjust -- of accounting for the Fox factors and reliance interests.

So it would be harder for them to make a change than simply regulate on a blank space.

So that shows how no matter what EPA may do at some point in the future, that doesn't change the fact that the Court can and should give us relief today based on the particular rule before it.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: General, you were responding to Justice Breyer's point that "system" is a very broad rule by saying that there are other phrases in the statutes that point the other way.

And I think you were interrupted, might have been by me, but were you going -- I -- I think what you were going to say -- tell me if I'm wrong -- is to point to the phrase "standard of performance for any existing source." Is that -- is that right?

Lindsay S. See: That is certainly one of them, Your Honor.

Elena Kagan: The major one, the big one?

Lindsay S. See: We also think that Section 111(a)(1) has particular textual-based cues as well.

Yes.

Elena Kagan: Okay.

Well, in the absence of your telling me what they are, as you say, the "for any existing source" comes from (d)(1), not from (a)(1).

And, of course, (d)(1) applies to the states.

So this is more a clarification question than anything else.

That would suggest that a state, even if it wished to, could not do what this rule does.

Is that -- is that right?

Lindsay S. See: We do agree that the states are limited in setting a standard performance to the -- in the same way that EPA is limited when it sets the best system of emission reduction.

Elena Kagan: Yeah.

So, I mean, isn't that sort of odd? This is, like, supposed to be this cooperative federalism system and -- and states are supposed to have a lot of flexibility, and if a state decides this is what we want to do, we think it's not very costly, we actually think it's less costly than some of the inside-the-fence alternatives, your reading essentially says too bad.

Lindsay S. See: I think there's two reasons why that's not a problem for federalism and state flexibility. The first is that states always retain inherent discretion to impose more stringent plans.

So, if a state or a group of states wants to have a trading program, they can do that.

Section 7416 expressly preserves that right for the states. But I think the second reason is it's a false argument to say that more options for EPA leads to more options for the state.

And the Clean Power Plan shows how that's true.

The Clean Power Plan set an aggressive system that said that there were options for the state, but, really, there weren't because states couldn't actually have other options other than generation shifting and reduced output and the extremely aggressive measures that EPA set in place. So this idea that giving EPA more flexibility helps the states is not true.

We think that alternative is worse for the states. It is, in fact, important to give meaning to the actual tailoring that Congress put in 111(d), which is, when states have the emission limitation from EPA, they are able to tailor that to particular sources based on remaining useful life and other source-specific factors. That's written out of the statute if EPA can set anything as a system and apply it at any level.

Elena Kagan: That -- that's helpful to me.

Can I ask you a different question, which is just this major question doctrine, like, how -- how big does a question have to be or how do you know when it's big enough?

Lindsay S. See: I think this Court has certainly applied it in different ways.

There's sort of two lenses we can look at it on.

It can be big enough within that particular industry where the statute operates.

That's the MCI decision, which talks about which particular telecom companies are subject to rate-making or not.

That not be -- may not be as massive on an economy-wide scale, but it had a major change in that statute, and this Court found that it was appropriate. But we can also look at the broader economic and social consequences --

Elena Kagan: And -- and do you look at those now? I mean, I would think that if this is a rule of statutory construction, and -- and I would think that whether or not it has any kind of constitutional links, that the question would be what the Congress at the time thought and what the circumstances at the time were. It seems to me quite irrelevant to rules of statutory construction under the theories that this Court has most frequently used in recent years about, like, oh, if we look around the world today, we see that this particular rule has a big impact.

Lindsay S. See: I don't think that's true, Your Honor, because we certainly look at the words that the Congress of 1970 or 1990 put into the Clean Air Act.

But, when we have these clear statement canons, this Court looks at commonsense assumptions about what words we would expect to see there if Congress was, in fact, going to give broad delegation to allow EPA to make decisions such as whether to engage in nationwide cap-and-trade systems, how far to go, and how to do it. So I think those commonsense assumptions are true for all Congresses.

And, again, what this Court is doing is looking at the actual words that Congress put in.

Elena Kagan: Well, but the actual words, you know, unfortunately for your position, says "system" --

Lindsay S. See: Well, Your Honor --

Elena Kagan: -- which suggests, you know, that what Congress wanted to do, understanding that this was an area that was going to move very fast, has lots of technical components to it, that it wanted to give the agency flexibility to regulate as times changed, as circumstances changed, as economic impacts changed, all things that they could not possibly have known at the time.

Lindsay S. See: I think it is true that that flexibility is important in the term "system." Of course, Congress expected and hoped that technology and work practices would change. But Congress didn't just end with "system." It also talked about a standard of performance, and that's one of the terms in Section 111(a).

It also talked about something that can be applied. I think even in the Clean Power Plan, at that point, the agency recognized that in context, terms like "application" and "achievable" meant that EPA was limited to measures that could be "implementable by the source." Now the way that the agency got around it at that point is it redefined "source" to mean owner and operator. Now the agency, I don't believe, is trying to justify that statutory sleight of hand here, but it still wants to get away from the restriction that "application" actually means something a source can do.

So it's not just "system."

Elena Kagan: Thank you, General.

John G. Roberts, Jr.: Justice Gorsuch? Justice Kavanaugh?

Brett M. Kavanaugh: What -- what happens to this case if EPA issues a new rule before we decide this case?

Lindsay S. See: I think it would depend on what the new rule is.

If there is a final rule issued, this case very likely would be moot. The coalition that I represent, it did move for the D.C. Circuit to dismiss the challenge to the Clean Power Plan after the rule was, in fact, adopted. That wouldn't necessarily be the result.

I think the City of Jacksonville case is helpful for us on that point.

That involved an ordinance that had been repealed by the time the case made it to this Court, and that ordinance had actually been replaced by something that was different in some significant ways.

And the Court found that the challenge to the first ordinance was still not moot because it injured the parties in "fundamentally the same way." So, if there is a new rule that is based on the same legal error that hurts the states in the same way, it wouldn't necessarily be moot.

But we do think that a final rule would be a significantly different situation than here, where a year after the D.C. Circuit's decision we still don't even have a notice of proposed rulemaking to know what direction the agency might go in. And the agency hasn't even given us any indication that a new rule might help us. If anything, statements from the administration suggest that the rule would only make our injuries worse.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: General, what is the daylight between the major questions doctrine and the non-delegation doctrine? So, at the beginning of your argument, you talked about how the major questions doctrine can be understood as, you know, inspired by the separation of powers and you talked about avoidance and non-delegation. So, if the idea is that Congress shouldn't delegate major questions to an agency, is there any daylight between them?

Lindsay S. See: I -- I think, certainly, that is a broad view of the non-delegation doctrine.

It's not necessary for the Court to go that far to say whether Congress could delegate these questions because, here, it's clear Congress didn't. So I think the daylight between the two is really this question of, has Congress purported to delegate? The major questions clear statement canon is getting at that question, what did Congress think it was doing, what did Congress actually do with the words it put in the statute. And then it would be a separate question to say, if Congress clearly said, EPA, you may go forward and exercise this transformative power, that might be a separate non-delegation question.

Amy Coney Barrett: Well, when you say -- let me just push you a little bit on what you mean by "clear statement." Are you using the phrase "clear statement" to mean a linguistic canon? In other words, we would expect Congress to use a clear statement because one would, it would be common sense for one to say something like this very clearly and precisely?

Lindsay S. See: It would be common sense for Congress to speak clearly because this is the sort of issue that we assume Congress would handle itself.

And so, if Congress is not going to handle this sort of major policymaking question, at minimum, it would clearly direct it to the agency.

Amy Coney Barrett: So, when you say clear statement canon or clear statement rule, you're using that synonymously with, like, a linguistic canon?

Lindsay S. See: It is similar in that sense. If -- if what you mean by linguistics is that it is text-based, that is true.

We're not asking the Court to change the text that's in the statute.

It's a question about what is the text we would expect Congress to have put there.

So it's -- in this particular class of cases, Congress's silence is unambiguous that it did not give that power to the agency.

Stephen G. Breyer: How does this work? I mean, I had thought, which is only one way of looking at it, that we have a whole U.S. code filled with delegations to different agencies, and many of those words are fairly technical. But we're asking a question, when the agency does something, would a Congress that passed all those words really have intended that agency to have the power to do this thing under those words, which doesn't say so explicitly, right?

Lindsay S. See: Your Honor, I --

Stephen G. Breyer: And there are many, many things that might argue for or against that.

Is it an interstitial matter? Is it a minor matter having to do with administration that they're more familiar with? Is it something that's going to change the whole United States of America? That cuts the other way.

But a question is, how do we in the face of silence determine what Congress would have wanted to delegate, including this or not? And a different question is, if Congress did, is it specific enough to pass non-delegation, the non-delegation requirement? Those are two very different questions.

Lindsay S. See: They are, of course, Your Honor.

Stephen G. Breyer: And so how -- how do you see it?

Lindsay S. See: So I -- I -- I think, on this first question, when we're looking at how do we know, we can look at the language this Court has used, is the interpretation the agency is advancing something that would lead to extraordinary authority in the words of Gonzales, the Court looks at the breadth of authority. I think a simpler answer here about what Congress actually meant, we can look at 1990, which is the last time the Clean Air Act was amended.

Congress made particular changes to 111, but it also made changes to three other portions of the statute where it specifically wrote in trading and cap-and-trade language. That's in the implementation standards for NAAQS standards.

It's in the stratospheric ozone portion of the statute and also acid rain. So we know Congress was thinking about these nationwide cap-and-trade measures at the exact same time it made changes to 111 and it didn't put those words in there. And I think going to the second question of assuming Congress did, assuming we had something that specific, I think then we would have to look at the non-delegation questions, and I think the way that the Court has looked at it through the intelligible principle, that's how we're arguing it here under constitutional avoidance.

We think that the limits that Congress put in the statute make sense if the agency is limited to things a particular building can do. But those limits have no meaning to them if EPA is able to regulate at any level it wants to.

So we think that even under that existing framework, there would be serious non-delegation questions. And, of course, there would be a separate question if this Court would revisit -- would be inclined to revisit in a future case whether or not Congress could delegate that. But, again, Congress does not need to reach that question here because it certainly did not delegate that power.

John G. Roberts, Jr.: Thank you, counsel. Mr. Roth.

Jacob M. Roth: Mr. Chief Justice, and may it please the Court: On our reading of Section 111(d), the EPA's power is a bounded one.

It takes an existing pollution source as a given and asks what emissions rate is achievable for that source. Respondents, however, want to divorce the EPA's best system of emission reduction from the particular source that's being regulated. That would allow the agency to effectively dictate not only the technical details of how a coal plant operates but also the big-picture policy of how the nation generates its electricity. What is the right mix of energy sources for the nation and, for that matter also, how the nation uses its electricity? And the same would go for every other carbon-emitting industry.

That immense authority cannot be reconciled with the statutory text and structure, let alone with the major questions doctrine. With that, I welcome the Court's questions.

Clarence Thomas: Could you give us just a walk-through, the statutory language that makes the distinction that you're talking about?

Jacob M. Roth: Yes.

Absolutely, Justice Thomas.

I think the key language in the statute is in (d)(1), which talks about "establishing standards of performance for any existing source." And I think virtually every word in that phrase confirms our interpretation.

We're looking at a source, and we're asking how can it better perform from an emissions standpoint while existing. Respondents' interpretation doesn't fit with any of those words because they're not looking at a source.

The source doesn't have to be performing.

It could be shut down.

And the source doesn't have to continue to exist. So I -- I would say that the very idea of a standard of performance confirms that we need to be looking at measures that the source can take to do better from an emissions standpoint.

Clarence Thomas: There's quite a bit of talk about outside the fence and inside the fence.

I don't know how you can draw such clean distinctions.

It would seem that some of the activity that you might think is based -- source-based is also outside the fence. How do you make those distinctions?

Jacob M. Roth: Yeah.

Justice Thomas, I think that the -- I think it's shorthand that isn't exactly precise.

So the way I like to think about it is, is this a measure that would reduce the emissions rate from this source's operations? If it is, then it's within the scope of the statute.

Clarence Thomas: But it would seem as though that EPA could regulate the source in a way that actually requires a change, for example, in the mix of energy generation that -- for example, that the cost of running a facility is so high that you begin to change your generation sources, say, from coal to natural gas or natural gas to solar.

Jacob M. Roth: So, Your Honor, there absolutely could be incidental effects of a regulation that is a valid regulation, right, that have the effect of causing some generation shifting.

That's not what we're objecting to here.

I mean, there always could be incidental effects of regulation. Our objection is that the EPA's objective, right, the whole design of the Clean Power Plan and that reading of the statute is that the agency can include in its best system measures that are -- that are calling on the plant to operate less or not at all.

Clarence Thomas: But what's the difference? If you can do it indirectly or directly, isn't -- isn't it the same result? You don't have to -- EPA doesn't have to say we are doing this for the purpose of requiring you to change your generation -- energy generation mix.

But, by regulating the facility, it can cause you to do that yourself. So what's the difference?

Jacob M. Roth: Well, Your Honor, I think one can be -- one can result in a standard of performance the way we think of that term and one can't.

So, if there's a way for the source to comply, right, I'm going to change my technology, I'm going to change my work practices, I'm going to do these things that are going to cause my operations to emit less than they otherwise would, then it's a standard of performance.

We're -- we're regulating how the plant operates. And if you choose to do something else, if you choose -- if you decide, look, this plant doesn't really -- it's not economical anymore, I'm going to shut it down, well, that's an incidental byproduct.

I think that's very different from the EPA saying our goal here, the way we are going to reduce emissions, is not by making the plant work better.

It's by not using the plant at all.

Elena Kagan: I -- I guess just given the way the grid works, this distinction between incidental and not incidental does not strike me as very convincing because the way the grid works is it -- it -- it prefers cheaper methods.

And so EPA could come out with a rule that is very plant by plant but that makes coal plants hugely more expensive.

I mean, this is essentially what the market is already doing, but EPA could do it faster. And the result would be that the grid would choose less of its product and that there -- and you can say that's incidental, but it's like a necessary one-to-one relationship.

It will just happen. And so there's no real difference. Going back to Justice Thomas's point, inside the fence, outside the fence, it's all going to have the same result.

Jacob M. Roth: Well, Your Honor, I think the difference is in terms of what the statute is asking the agency to do and -- and having the agency perform that task. So, if the agency is being honest and says the best way to reduce emissions from this plant is to buy this scrubber and install this scrubber and, yes, that's going to increase its costs and there's going to be some effect to that, but the reason we are doing this is because the best system for this plant is to get that scrubber, look, it's doing what the statute tells it to do.

I don't think we would have an objection to that.

We could say maybe it's not adequately demonstrated or isn't the best --

Elena Kagan: And here's what EPA has said.

EPA has said, you know, it's all generation shifting, but this system, it's actually going to cost less for everybody than if we did something like what you're talking about. So why shouldn't EPA have that ability? Why shouldn't the states have that ability?

Jacob M. Roth: Well, Your Honor, I think EPA doesn't have that ability because I don't think that's what the statute is designed to do. I think the statute is designed to set performance standards for sources, which I think necessarily is focused on how well is the plant going to perform.

And that --

Stephen G. Breyer: Although you have -- why isn't it a -- look, the administrator shall prescribe regulations which shall establish a procedure similar, dah, dah, dah, dah, which establishes standards of performance, which includes system, for any existing source, okay, and which it would apply if such existing source were a new source.

All right? That's what you're supposed to do.

Jacob M. Roth: Right.

Stephen G. Breyer: So what we do at EPA is we say just what I said before.

You know? We're talking about the computer which is underground somewhere in New Jersey or it used to be or -- or I don't know where it is now, it's somewhere underground in Boston or something, controls several states.

And it's going to affect, because it's going to affect the prices of what comes online faster, of sources all over the place. Now what in this -- these words here prevents them from doing that? And it has nothing to do with in fence.

It has to do with totally without a fence, okay?

Jacob M. Roth: Right.

So --

Stephen G. Breyer: So what are the words that stop that?

Jacob M. Roth: -- so, Justice Breyer, I don't think that could be called a standard of performance for any existing source because, on that hypothetical, Your Honor, I know the source is --

Stephen G. Breyer: Why? It affects every --

Jacob M. Roth: -- because --

Stephen G. Breyer: -- existing source that happens to have a time-of-day meter.

Jacob M. Roth: But, Your Honor, none of the sources are doing better from an emissions standpoint.

They are not performing better.

Stephen G. Breyer: Oh, yes, they are. They are, in fact -- well, regardless of that --

Jacob M. Roth: I -- I -- I --

Stephen G. Breyer: -- what in the language here says that that doesn't apply to any -- to existing sources? Do you like any fish at all? If you like any fish, namely, every fish in the world, then you also like salmon, which is any fish.

Okay? Got it?

Jacob M. Roth: Yes.

Yes, Justice Breyer.

Stephen G. Breyer: Okay.

So, here, we have a -- a -- a rule because it applies to PJM online outside the fence.

Jacob M. Roth: Right.

Stephen G. Breyer: And, of course, it affects and thereby applies to all the -- all the plants that have time-of-day metering, which are, let's say, 50 percent of those in the United States.

Jacob M. Roth: Justice Breyer, if I understand the hypothetical, I don't think any plant on that hypothetical is emitting less other than by virtue of operating less.

In other words, it's not about --

Stephen G. Breyer: No.

No.

What it does -- oh, yeah, that --

Jacob M. Roth: It's about reduce --

Stephen G. Breyer: -- no, a different -- a different machine of generating is put online, it's number 3 that comes after 1 --

Jacob M. Roth: Right.

Stephen G. Breyer: -- instead of number 2 --

Jacob M. Roth: Right.

Stephen G. Breyer: -- that comes after 1.

Jacob M. Roth: So the regulated source, Justice Breyer --

Stephen G. Breyer: Yeah.

Jacob M. Roth: -- is just operating less. It's not operating better.

I don't think that's a standard of performance.

Stephen G. Breyer: Okay.

Where does it say better?

Jacob M. Roth: Well, it says standard of performance.

So let me give you an example, Justice Breyer. We talk about standards of performance all the time when we're talking about fuel, fuel performance standards for cars, right? When we use that phrase, what we mean is, you know, I can get 30 miles a gallon, I can get 35 miles a gallon.

We don't mean I can take the bus.

We don't mean I could stay home.

You know, yes, you're using less fuel that way.

That's not a standard of performance. I think the same is true here.

Sure, we can shut down the coal plant, and that'll -- it will emit less, but it is not performing better.

I don't think we can --

Sonia Sotomayor: Counsel --

Jacob M. Roth: -- refer to that.

Sonia Sotomayor: -- the problem I have with your argument is that you're looking at "system" as involving just the one plant, but the entire structure of the EPA, if you look at 7410, which 711 -- 7411 says you look at, okay, in looking at the structure of the plant, that very directly says that the state's plan can include incentives, such as fees, marketable permits, and auctions of emission rights.

Jacob M. Roth: Right.

Sonia Sotomayor: So I look at that and that's generation.

That -- that's all the things that your state Petitioners' counsel says states can't do.

It's out of the fence, okay? And so are you like her in saying the states don't have the rights to do auctions or credit systems, et cetera? I think not.

From your brief, it was very clear to me that you said states have those inherent rights.

And I look at 7410 and it's clear that the statute -- all right?

Jacob M. Roth: Right.

Sonia Sotomayor: So let's go that far, and now we're going to go to what you were answering for Justice Breyer.

"System" can't mean the reduction by one plant because that's not going to meet the overall standard, which says we don't want to reduce carbon monoxide or carbon dioxide in one plant; we want to reduce it across the system by 30 percent. And across the system may be that plant A is not going to reduce by 10 percent, but it's going to go into the market and reduce by 5 percent, but someone else is going to reduce by 50 percent.

And we're going to even out so the system, the ozone layer, has 30 percent less. So assume that position.

How can we say that it is part of this plan to limit, part of the statute to limit what the EPA or the states are doing with respect to how to reach the best system reduction that can be reached?

Jacob M. Roth: Okay.

Thank you, Justice Sotomayor.

I think your question actually perfectly tees up the distinction between Section 7410 and Section 7411.

I think they are fundamentally different types of provisions. Section 7410 is about getting to a certain level of pollutant in the ambient air. And so, if that is your goal, if that's what the EPA is trying to do, it makes perfect sense to say we're going to have the plants, you know, trade and -- we just want to get to this level in the ambient air for -- right, for the whole area. 7411 is a different animal because it is focused on the source.

The frame of regulations --

Elena Kagan: But doesn't 7411 say that the states are to use a procedure similar to that provided by Section 7410?

Jacob M. Roth: Sure, Justice Kagan.

The procedures are --

Elena Kagan: Wait.

There -- there is a -- there -- I mean, the -- the text says go look at 7410.

Jacob M. Roth: For -- for the procedures.

Elena Kagan: Now I'm ready.

Jacob M. Roth: For the procedures, Justice Kagan, and the procedures are the state comes up with a plan, submits it to EPA.

I agree, they're similar in that respect.

But, in terms of the way they're designed and the substantive goal of those two provisions, they're totally different types of provisions.

Again, one is focused on the levels in the overall area, and one is focused on making sure these sources operate as best as they can.

Just so --

Elena Kagan: But, again, Justice Sotomayor is correct, right, that the necessary consequence of your argument, as it is of General See's argument, is that the states can't do this either?

Jacob M. Roth: So -- so let me address that separately.

I think there are two questions.

I think the first question is, how can we -- how do we set the standard of performance? And I think, in that sense, yes, absolutely, the states are on the same plane as -- as the EPA in identifying the best system. The states are governed by that as well. I do think there's a second question potentially -- it's not at issue here -- which is the state also has the power over implementation and enforcement of the standards. And so you could have an argument that when it comes to compliance, the state can treat certain things as satisfying a standard, you know, by looking at trading or other beyond-the-fence measures.

Elena Kagan: Well, not if your statutory interpretation is correct, you couldn't.

Jacob M. Roth: I -- I -- I don't think that's right, Your Honor, because I think it's different text.

Elena Kagan: I mean, you keep on telling us this is all about plant by plant by plant and -- and, you know, just because it says standard of performance for --

Jacob M. Roth: And, Your Honor, I think that's how the standard gets set.

But I think there's a separate question of how the standard gets satisfied, and there are lots of situations in which we distinguish between those things. They are different -- there's different statutory language.

They obviously implicate different canons. I mean, the question is not presented here, so I don't -- I'm not staking out a firm position.

I'm just saying I think there is room to argue about that because, again, our concern is how is the EPA setting the bar.

We're not looking at how are you going to meet the bar.

I think those are separate questions.

Elena Kagan: I -- I would think that, you know -- that the EPA setting the bar, I mean, that's far less regulatory than the states saying how are you going to meet the bar. I mean, one of the oddities of this case is that the way this works is the E -- EPA can say something and then basically states can say we'd like to do something else, that the EPA is not directly regulatory when it says this.

Jacob M. Roth: That's right.

I think the EPA is setting the bar.

The states are deciding how you get there.

And there's an argument that they are entitled to give sources more flexibility, more ways of getting there, right? I think that's less regulatory because it's giving them more flexibility.

And I think it's just -- again, it's a different question that I don't think is presented by this case.

John G. Roberts, Jr.: Justice Thomas? Justice Breyer, anything further? Justice Alito? Justice Sotomayor?

Sonia Sotomayor: Just one question. In the petition below, you sought vacatur of the ACE Rule, correct?

Jacob M. Roth: That is correct.

Sonia Sotomayor: And the CWA is no longer in effect.

You got the ruling you wanted, vacatur of the ACE Rule.

That's been put on hold. So -- but how do you have standing?

Jacob M. Roth: Well, Your Honor, we -- we asked for vacatur of the ACE Rule because we took the position that the EPA couldn't regulate this at all, and so we were asking for no rule as opposed to the ACE Rule, yes, no rule is better than the ACE Rule. But the decision below didn't just vacate the ACE Rule.

It vacated the ACE Rule and revived the Clean Power Plan.

And I understand the agency has said we're -- we're going to -- we're going to --

Sonia Sotomayor: Well, it didn't --

Jacob M. Roth: -- update the Clean Power Plan --

Sonia Sotomayor: -- quite do that. It said that the CWA was vacated on an erroneous premise, and it sent it back for the government to figure out what it was doing.

Jacob M. Roth: Well, it -- it -- it --

Sonia Sotomayor: It's now said we have a new rule.

Jacob M. Roth: Well, Your Honor, it set aside -- what the judgment technically did was set aside the ACE Rule, including the embedded repeal of the Clean Power Plan.

Sonia Sotomayor: All right.

Jacob M. Roth: And the agency -- the agency has now said, well, we're not -- we're going to update it, right, it's out of date, we've got to change some dates, we've got to change some figures, but that -- I mean, that doesn't moot the case.

We still obviously --

Sonia Sotomayor: All right.

Jacob M. Roth: -- have a dispute about what -- what the statute means and what the agency is allowed to do.

Sonia Sotomayor: Thank you, counsel.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Roth, I'm -- I'm going to give you sort of like what I take to be the major questions doctrine as this Court has stated it in prior cases, principally Brown & Williamson and UARG.

This is, like, my understanding of these cases.

And I would like you to tell me whether you think I have the right understanding or the wrong understanding. If the right one, why you fit into it, and if the wrong one, you know, whatever. So my understanding is there's ambiguity in the statute.

That's the first condition.

The second is that the agency has stepped far outside of what we think of as its appropriate lane, you know, the FDA regulating tobacco, that sort of thing, just like something that's like, what, the FDA regulates tobacco? So that's the second.

And the third is, even though it would -- it is conceivable on the face of the provision being most directly looked at, that it kind of wreaks havoc on a lot of other things in the statute. So I would say it's those three things that are the common points of UARG and of Brown & Williamson.

Do you agree with that?

Jacob M. Roth: Yes, Your Honor, I do generally agree with that.

I think -- I think that certainly works for us in this case.

I mean, I think there are some stronger versions of the major questions doctrine that some cases might suggest, but I think that version is perfectly consistent with what we're arguing here. In fact, again, I don't think we actually need the major questions doctrine to win this case.

I think the text is pretty clear.

But I do think we fit directly within that, and here's a way to think about it. On our version of the statute, the agency is basically solving an engineering problem, right? We've got the source.

It's taking coal, it's turning it into electricity. We want to minimize the amount of emissions. When it's doing that, it's a classic administrative technical type question that we expect the agency to answer. On the Respondents' interpretation, the agency is asking questions like: Should we phase out the coal industry? Should we phase out coal? Should we build more solar farms in this country? Should we restrict how consumers use electricity in order to bring down emissions? Those are not the types of questions we expect the agency to be answering.

Elena Kagan: I feel like a little bit of a broken record, but I'll just bat this one back to you. You can do that with source-by-source regulations.

You know, if that's what EPA wanted to do, I have a basketful of source-by-source regulations that would allow them to get their way on all of those questions. It just has no necessary relationship to this fence/non-fence way of thinking of things.

Jacob M. Roth: Your Honor, I -- I -- respectfully, I -- I don't -- I don't see it that way.

I think, if the agency is restricted within the fence and to measures that the -- that the source can use to reduce its own emissions, I think it's quite circumscribed of an analysis. And, yes, it can do things that are going to be expensive and maybe there will be some consequences to that, and if they do, we may be having a different fight about whether it's adequately demonstrated under the statutory factors. But it's a -- just a fundamentally different order of -- of question and order of inquiry that the agency is engaged in.

And I think, when you get to that high level of how should we generate electricity, how should consumers use electricity, we have just gone so far beyond what we would expect the agency to be doing and what the agency has done for 40 years under this provision.

Elena Kagan: Thank you.

John G. Roberts, Jr.: Justice Gorsuch? Justice Kavanaugh? Justice Barrett?

Amy Coney Barrett: Just one question. I'm not sure that you quite answered Justice Kagan when she was asking you about your formulation of the major questions doctrine because she described it as, you know, in Brown & Williamson, you know, the FDA staying in its lane, what, the FDA can regulate tobacco. Or, if you think about the eviction moratorium case from earlier this term, you know, it was, what, the CDC can regulate the landlord/tenant relationship. Here, if we're thinking about EPA regulating greenhouse gases, well, there's a match between the regulation and the agency's wheelhouse, right? So you're describing something a little bit different than Justice Kagan was asking you.

You're saying, when you look at this scheme, this is a really big deal. How do we decide that? That -- that's a little bit different than a mismatch between the subject of the -- of the regulation and what the agency does.

Jacob M. Roth: So, actually, Justice Barrett, I think it is a mismatch and it's pretty much the same way because I think, if you look at the Clean Power Plan and that interpretation of the statute, the agency really isn't regulating emissions.

It's regulating industrial policy and energy policy, right, that is going to have downstream emissions consequences. It's not actually saying here's how you can reduce your emissions.

It's saying, well, we can do the market differently in a way that we won't need you at all, and then, yeah, sure, you won't have the emissions from the plant.

I think that is just taking it on up to -- to, again, a fundamentally different level in just the same way as -- as Brown & Williamson and those precedents.

Amy Coney Barrett: Thank you.

Jacob M. Roth: Thank you.

John G. Roberts, Jr.: Thank you, counsel. General Prelogar, we'll -- why don't we take a five-minute break.

John G. Roberts, Jr.: General Prelogar.

Elizabeth B. Prelogar: Mr. Chief Justice, and may it please the Court: This case is not justiciable, and Petitioners are wrong on the merits in any event. On justiciability, the D.C. Circuit's judgment leaves no EPA rule in effect.

The agency action challenged here wasn't the Clean Power Plan; it was the decision to replace it with the ACE Rule.

The D.C. Circuit vacated ACE but chose not to reinstate the CPP, so no federal regulation will occur until EPA completes its upcoming rulemaking. Petitioners aren't harmed by the status quo and can't establish Article III injury from the D.C. Circuit's judgment. Instead, what they seek from this Court is a decision to constrain EPA's authority in the upcoming rulemaking.

That is the very definition of an advisory opinion, which the Court should decline to issue. If the Court reaches the merits, it should affirm.

No one seriously defends the ACE Rule's view that the statute restricts states and power plants to inside-the-fence-line measure.

That restriction is unprecedented and would threaten to disrupt an industry that has long relied on measures like trading and averaging to reduce emissions in the most cost-effective way. Nor does the statute limit EPA to inside-the-fence-line measures in identifying the best system of emission reduction. Petitioners claim that interpretation is necessary to prevent the EPA from restructuring the entire industry or shutting down all coal plants. We agree that EPA cannot do those things, but that's because of the express constraints that Congress included in the statute.

Among other things, the system has to be adequately demonstrated.

It has to be of reasonable cost.

It can't threaten the reliability of the energy grid.

And, critically, it must be focused on cleaner production, not on reducing overall levels of production. Finally, Petitioners are wrong to say that this case implicates a major question.

For all their criticisms of the CPP, we know that it wouldn't have had major consequences.

The industry achieved the CPP's emission limits a decade ahead of schedule and in the absence of any federal regulation. Given that reality, Petitioners ask the Court to focus on the nature of the statute in the abstract, not on the particular effects of any particular regulation.

But that is never how this Court has looked at major questions, and it just reinforces that Petitioners are seeking an advisory opinion here. I welcome the Court's questions.

Clarence Thomas: Would you kindly say a bit more about your statement that the Court did not below -- the D.C. Circuit did not reinstate the CCP?

Elizabeth B. Prelogar: Yes, of course, Justice --

Clarence Thomas: Or CPP.

Elizabeth B. Prelogar: Of course, Justice Thomas.

So, at the time that the case was pending in the D.C. Circuit, I think there was a live question about what EPA's rule would be. Was it going to be the CPP, or was it going to be ACE? But, when the D.C. Circuit issued its judgment and vacated the ACE Rule, it did not reinstate the CPP. And I think that was for good reason. There were really three key facts that had changed on the ground that I think prompted the D.C. Circuit to determine that that was the appropriate remedy here. The first thing I would emphasize is that the CPP had never taken effect, so it had never altered the status quo or subjected Petitioners to any form of regulation. And then, second, the industry had very much undergone tremendous changes, and so the CPP was totally obsolete.

The emission limits had been satisfied, and the compliance deadlines for submitting state plans had come and gone. And then the third fact I would point to is that EPA had made clear that if the ACE Rule were invalid, it was going to go back to the drawing board and it would do a new rulemaking, which is what it's currently doing. It did not seek to breathe new life into the CPP.

And I think, therefore, the D.C. Circuit recognized that the CPP was -- was gone and it wasn't coming back.

Stephen G. Breyer: Well, I don't understand -- I mean, I must be wrong.

So just tell me I'm wrong.

Look, I -- I thought that the -- the agency, the EPA, said we're getting rid of the CPP and the reason we're getting rid of it is because our interpretation of the law is ACE.

Is that right?

Elizabeth B. Prelogar: That's correct. That's what the ACE Rule did.

Stephen G. Breyer: Okay.

So then they go to the D.C. Circuit, and the D.C. Circuit says no, your interpretation of ACE is wrong. Well, if their reason for getting rid of the CPP is ACE, and if ACE is wrong, and then you send it back to the EPA, why isn't CPP back? Because they've never had any good reason for getting rid of it.

Elizabeth B. Prelogar: Because there's a well-developed body of administrative law that speaks precisely to that issue in the D.C. Circuit about what the effects will be when a rule is invalid and vacated. And it's not the case that the prior regulatory regime always and invariably springs back into existence.

Instead, the D.C. Circuit has made clear that it resolves that on a case-by-case basis, and sometimes it's appropriate to put the prior rule back into effect.

Stephen G. Breyer: Okay.

And what did they say here?

Elizabeth B. Prelogar: And, here, we think the D.C. Circuit's judgment --

Stephen G. Breyer: Did it say that?

Elizabeth B. Prelogar: -- quite notably did not put the CPP back into effect.

It only vacated ACE.

And then the D.C. Circuit confirmed that that was the best reading of its judgment when it issued the partial stay of the mandate to make clear that in the interim, until EPA conducts its own rule --

Stephen G. Breyer: Okay.

So -- so, in other words, they said, EPA, you're wrong about ACE, but, EPA, even though that was the only reason you gave for getting rid of CPP, CPP is not back?

Elizabeth B. Prelogar: Yes, that's how we interpret the D.C. Circuit's judgment.

Stephen G. Breyer: If I read that interpretation -- now, if I don't agree with that, I don't know if I -- you know, I haven't really read it, but -- but I'll go read that. (Laughter.)

Stephen G. Breyer: And -- and -- and then -- and then -- and then suppose I don't agree with you.

I think, oh, God, they're going to send it back, CPP will go back.

And you are in the midst of a new rulemaking.

So how do you get rid of CPP? I mean, one, you have the power not to prosecute.

A pretty broad power.

But that's plant by plant. Two, you have a power to suspend things for good cause.

You know, the good cause, you don't have to go -- you -- you wouldn't have to get rid of CPP via a rulemaking because you can do it quickly through good cause. Is there anything else you have?

Elizabeth B. Prelogar: Well, Justice Breyer, I want to resist the premise in the first place that the CPP could possibly come back into effect.

Among other things, all of the key compliance deadlines for the submission of state plans have come and gone --

Stephen G. Breyer: Yeah.

Elizabeth B. Prelogar: -- so EPA would need to do a rulemaking regardless, as your question suggested --

Stephen G. Breyer: Yeah.

Elizabeth B. Prelogar: -- in order to even sensibly try to implement the CPP. But it said just the opposite.

It is not seeking to reinstate CPP --

Stephen G. Breyer: Okay.

I got that point.

I -- I just wonder, maybe I'm just curious about it, what does -- what does the -- how can an agency get rid of a rule it doesn't want if it doesn't want to go through a big rulemaking in order to get rid of it because it wants to do something else?

Elizabeth B. Prelogar: Well, I think, to the extent that you've put your finger on it, that's a really good reason why the D.C. Circuit didn't reinstate the CPP.

And I should emphasize no one was advocating to have the CPP put -- put back into effect for all of the facts that I -- I identified for Justice Thomas. Here, when we filed the motion for a partial stay, the other parties consented to that. And we were on record, making clear in the D.C. Circuit that if ACE were invalidated, EPA was going to conduct a new rulemaking. That's exactly what it's doing, and so no federal regulation is in place.

Sonia Sotomayor: General --

John G. Roberts, Jr.: Well, before -- before the D.C. Circuit ruled, ACE was on the books, and they liked it.

After they ruled, ACE was off the books, and they don't like that.

I don't understand why that's not fully justiciable.

Elizabeth B. Prelogar: Well, it's certainly true that they liked the legal analysis in the ACE Rule, but I think the key thing to recognize here is that they aren't actually harmed in an Article III sense from the absence of regulation.

That's the lay of the land now.

The choice is, will there be no federal regulation while the rulemaking is -- is completed, or is ACE going to take effect? And they can't say that they have any concrete injury or harm from not having the regulation of ACE, from not having to start working on state plans that are just going to become overtaken by events when EPA completes that rulemaking.

Instead, what they're focused on is the effects of what's going to happen in the future.

They're very clearly --

John G. Roberts, Jr.: Well, I guess, I mean, I -- I gather their position would be it's -- just because there's no regulation doesn't mean we're happy.

They would like regulation according to their particular perspective.

They'd like good regulation, which they think they had with ACE, and now they don't have it. Again, why isn't that a justiciable harm?

Elizabeth B. Prelogar: Well, Mr. Chief Justice, nothing prevents them right now from regulating however they wish.

If West Virginia today wants to start regulating consistent with what ACE contemplated, it can take whatever actions it wants to take with respect to the sources in its state.

So there's no impingement of its sovereign prerogatives.

They right now have full authority to undertake whatever kind of regulation they'd like. What they don't have an injury from is the absence of having a federal regulation in place that would impose additional regulatory burdens on them in the meantime.

Sonia Sotomayor: Counsel, Ms. See said -- Counsel See said, General, that 20 states were not in compliance with the CPP. What do we make of that? Because you said the industry has reached the limits, but 20 states haven't.

What do you make of that statement by her? And why is that fact not important?

Elizabeth B. Prelogar: So I think that's incorrect when you look at the analysis that EPA conducted when it repealed the CPP, and in that regulatory impact analysis, what EPA observed is that taking into account delayed implementation, which would be necessary, and looking at the flexibilities that are offered by interstate trading, there would be no difference between a world where the CPP took effect and one where it didn't. On a nationwide level, the emissions limits have been reached, and so, effectively, there would be no cost to states to engage in that interstate trading to get their limits below the requisite levels. And for that reason, in terms of costs and benefits, what the repealed rule said is no cost savings to states from repealing this because it wouldn't impose any burdens on them and also no further benefits with respect to further emissions reductions because we don't expect that there would be any further emissions reductions under the CPP itself.

Brett M. Kavanaugh: What's the status of the new rulemaking to the extent you can share?

Elizabeth B. Prelogar: EPA is still undertaking preparatory activities.

It expects to issue a notice of proposed rulemaking by the end of this year.

In the past, it's taken about a year after that to issue a final rule.

Sonia Sotomayor: Counsel, there are two parts --

Elena Kagan: This year, the calendar year?

Elizabeth B. Prelogar: This calendar year, that's correct.

Sonia Sotomayor: There are two questions I have.

At least one brief, I think it might have been two, claims that the Clean Power Plan placed more stringent emissions on existing plants than it did on new sources, which seems -- I don't understand how that makes sense. And, number two, what I'm troubled by is not generation shifting qua generation shifting because, as very clear in the questioning and -- and I think my logic, there could be some plant source changes that could force generation shifting anyway, so it's not generation shifting qua. But I think what the major issue that might trouble me is the claim that the emissions standards that you set force states to do generation shifting, that you have not given them options not to generation shift.

You list out a whole bunch of options, but I thought one of their claims was that no matter what they did, they still had to generation shift. So could you answer those two questions, old and new plants and whether there is -- have you exceeded your authority by forcing some -- forcing the states out of choices?

Elizabeth B. Prelogar: Yes.

And I'll take those questions in turn. So, first, with respect to the argument that the existing source standard under the CPP was more stringent than the new source standard, I -- I think that's incorrect, and it's really trying to make an apples-and-oranges comparison. The two standards operated quite differently and critically had different timeframes.

So the new source standard took effect immediately, whereas, under the CPP, the existing sources wouldn't actually have to put into place any kinds of emissions reductions until 2022 at the earliest or even 2023 in some cases.

That means for the first seven years that both standards were contemplated to be in effect the new source standard was far more stringent because the new sources were already subject to that emission reduction. And then the second thing I would point to is that even after that initial period, the phase-in period, EPA has a statutory obligation to revisit the new source standard every eight years to take account of any changed circumstances.

And so there was no guarantee that that standard would remain unchanged and would function as a less stringent standard as compared to the existing source standard. To turn to the second aspect of your question, focused on whether the CPP effectively would have required generation shifting, the answer to that is no.

The CPP itself emphasized that there were other types of mechanisms that sources could consider deploying, things like carbon capture and sequestration, natural gas co-firing.

Those were not listed as components of the best system in the CPP, but they were available technologies. And just as a matter of on-the-ground realities, the coal plants in -- in some instances have used those technologies to emit at levels below what the CPP contemplated.

So it's just wrong to say that the standards couldn't have been met through any other way than generation shifting.

But --

Brett M. Kavanaugh: I think the other -- keep going, sorry.

Elizabeth B. Prelogar: Well, if I could make one final point in response to Justice Sotomayor. I do want to acknowledge that, of course, EPA recognized that sources were most likely to comply through generation shifting. That would be most cost-effective for them. But I don't think that there is any anomaly between that kind of correspondence between the best system of emission reduction and how the sources actually choose to comply because, of course, part of EPA's task here is to see what is adequately demonstrated, what is the power sector already doing to control emissions, and -- and that's the starting point for identifying the best system, and they also have to look at cost. So, to the extent that EPA is saying, here's what the power sector is doing to reduce their emissions, it's -- it's just not surprising to see that they would continue to generation shift to satisfy that emission limit.

Brett M. Kavanaugh: The other side's theory, I think, zooming out a bit, is that Congress knows how to do cap-and-trade.

They did it with acid rain.

There were bills pending in Congress to do cap-and-trade for CO2 emissions.

Ultimately, those did not pass.

And then what happened is the executive branch, as executive branches are, unhappy with the pace of what's going on in Congress, tried to do a cap-and-trade regime through an old and somewhat ill-fitting regulation. So the cap-and-trade aspect of this, I just want you to address and kind of put that in context of, like, UARG, squeezing it into a -- an old statute that wasn't necessarily designed for something like this.

Elizabeth B. Prelogar: So I think that their reliance on that failed legislation in Congress is -- is wholly misplaced.

Those bills looked very different from the CPP.

It's -- it's not as though Congress considered something like the CPP and rejected it and said those bills would have applied to far more industry participants, not just power plants, would have governed far more pollutants and not just carbon dioxide. And I think, as -- as this Court recognized in Massachusetts versus EPA, when it relied on or rejected a similar type of argument pointing to failed legislation, I just don't think there's anything to glean from that record that would suggest that Congress had specifically contemplated and disapproved of the CPP itself. And -- and just one final point on that is to emphasize that, of course, the CPP was not a -- a national cap-and-trade scheme. EPA exercised its role as kind of an intermediate step of announcing the degree of emission limitation achievable based on the system it had identified, but then it was up to the states to exercise their role in this cooperative federalism scheme to identify the standards of performance for their sources. And as I had mentioned to Justice Sotomayor, nothing required that they actually use the best system that EPA had identified to any particular degree or -- or even at all.

John G. Roberts, Jr.: General, do -- do I take from your opening comments that you agree that there is such a thing as the major questions doctrine?

Elizabeth B. Prelogar: I certainly agree that the Court has applied that interpretive principle but not in a case that looks like this one.

John G. Roberts, Jr.: Well, okay -- okay.

Elizabeth B. Prelogar: It's always done it --

John G. Roberts, Jr.: But what --

Elizabeth B. Prelogar: -- with respect to actual effects.

John G. Roberts, Jr.: So -- right. So how would you articulate what the major questions doctrine is?

Elizabeth B. Prelogar: As I understand the way the Court has applied this interpretive principle, it has at the outset always engaged in a traditional interpretive -- interpretive exercise, looking at the traditional tools of text, context, and structure. And then, in cases like UARG or -- or Brown & Williamson or eviction moratorium, the Court has said that if there were any doubt about what it has already articulated as the best interpretation of the statute, that ambiguity would be resolved by the fact that the particular agency action has sweeping consequences based on its costs or the number of people involved or the type of authority claimed. And that's just very different, I think, down the line from how Petitioners are asking the Court to rely on major questions here. First and foremost, there is no agency regulation for the Court to review to evaluate those kinds of effects.

John G. Roberts, Jr.: Well, just getting back to what we're -- we're talking about, so you go through the whole analysis, you come up with what you think the right answer is, and then you ask whether that's consistent with the major questions doctrine?

Elizabeth B. Prelogar: That's how the decisions are --

John G. Roberts, Jr.: Sounds like --

Elizabeth B. Prelogar: -- structured.

John G. Roberts, Jr.: -- a Rule -- like a Rule of Lenity.

Elizabeth B. Prelogar: It's -- I -- I think the Court has applied it as additional confirmation of what it has understood to be the best interpretation of a statute based on those traditional tools.

John G. Roberts, Jr.: Well, why -- why doesn't -- I think there's some disagreement about how to apply it.

Why -- why wouldn't you look at it out -- at the outset and say, as I think the Court did in FDA, you know, why is the FDA deciding whether, you know, cigarettes are illegal or not, and then that is something that you look at while you're reading the particular statute or whatever other things you look at when you're trying to interpret a statute and see if it's reasonable to suppose that. I -- I mean, I -- just thinking back on Alabama Realtors or the OSHA vaccine case, I don't know how you would read those as not starting with the idea that this -- however you want to phrase it, this is kind of surprising that the CDC is, you know, regulating evictions and all that and then look to see if there's something in there, I guess, that suggests, well, however surprised, you know, that's -- that's still what -- we think that type of regulation was -- was appropriate.

Elizabeth B. Prelogar: Well, I certainly don't dispute that the Court in those cases has looked at the actual effects of the agency regulation and -- and found them to be surprising and incredibly consequential. But I do think that it wouldn't make sense to try to ask this as an abstract question at the outset because, among other things, we agree with how Justice Kagan articulated the principle, that this is really about filling in or directing what to do when there's ambiguity in a statute. And so you can't sensibly apply a major questions lens until you've determined that there's some ambiguity to resolve.

And to --

John G. Roberts, Jr.: I'm not sure I --

Elizabeth B. Prelogar: -- instead say --

John G. Roberts, Jr.: -- understand you.

I mean, you described it as an abstract inquiry.

I don't know how abstract it is.

It's just you look at it and you say, why is the CDC regulating evictions?

Elizabeth B. Prelogar: Well, let me try to make it --

John G. Roberts, Jr.: That's a pretty concrete question.

Elizabeth B. Prelogar: And, here, I think, though, it's -- it's not concrete at all because there's not any agency action for the Court to review.

And, instead, Petitioners have pressed on this idea that the Court should adopt an inside-the-fence-line limitation that is not at all the dividing line between what kinds of agency effects would be consequential or minor. You can imagine a future regulation that only uses biomass co-firing, for instance, and I -- I think it would be hard to say, well, that's a major question that has vast -- has vast economic and political significance. Your -- your average Joe on the street probably hasn't even ever heard of biomass co-firing. So, here, I think it's particularly abstract because there's no agency action to review to try to put that major questions gloss on it.

Elena Kagan: I mean, just to put it --

Samuel A. Alito, Jr.: You're shifting -- your -- your argument is shifting back and forth between your mootness argument and your argument on the merits. As to the mootness argument, have we ever held that the issuance of a stay can moot a case?

Elizabeth B. Prelogar: I'm not aware of a precedent, but I want to be clear that we're not arguing that it was the stay itself that mooted the case.

We think the stay just confirmed the D.C. Circuit's judgment not to reinstate the CPP.

Samuel A. Alito, Jr.: Has the D.C. Circuit held that the reinstatement of the CPP is off the board?

Elizabeth B. Prelogar: I think that's the only reasonable interpretation of this judgment. And this was something that the parties had touched on in the briefing before the D.C. Circuit.

It came up at the oral argument.

No one was pressing to have the CPP be reinstated because it just couldn't sensibly apply now given that it's been overtaken by events.

Samuel A. Alito, Jr.: Well, on to the merits part of what you said just before I asked my question, Mr. Roth made the argument that the application of the major questions doctrine here would be very similar to the application of that doctrine in the tobacco case or in the eviction moratorium case because, here, what your interpretation of the statute claims for EPA is not a technical matter, it is not a question of how to reduce emissions from particular sources, but you are claiming that the interpretation gives you the authority to set industrial policy and energy policy and balance such things as jobs, economic impact, the potentially catastrophic effects of climate change, as well as costs. Why isn't that correct?

Elizabeth B. Prelogar: It's incorrect here, and I think this just points up the problem with trying to interpret the statute outside the context of an actual agency regulation, because, although we agree with Petitioners with respect to many of their hypotheticals that EPA couldn't do those things, it's because of any number of other limits in the statute.

There are -- there are six limits that I'd love to go through if you're interested in hearing them that we think address their hypotheticals and are ones that Congress expressly incorporated. And what's missing is this inside-the-fence-line limitation, which we don't think tracks what will be major and what wouldn't be and would deny much needed flexibility to do commonsense and commonplace and well-established limits in this industry for things like averaging and trading.

Samuel A. Alito, Jr.: Well, the statute requires EPA to take into account, just to take into account, not even balance, take into account several factors, and they are incommensurable.

You know, how do you balance or take into account, what weight do you assign to, the effects on climate change, which some people believe is a matter of civilizational survival, and the costs and the effect on jobs?

Elizabeth B. Prelogar: So I think it's important to distinguish between that type of cost/benefit analysis, which EPA would conduct in a regulatory impact analysis under an executive order, and the separate statutory constraints in Section 7411, which we think wouldn't require that kind of balancing and very much constrain EPA. First, EPA has to determine that the standard is adequately demonstrated or the system is adequately demonstrated.

And I think that answers the concern about EPA just restructuring the industry.

Instead, it looks at what the sector is already doing as the baseline. Second, of course, as we've noted, you have to look at costs, and that means that it cannot be of unreasonable costs on the industry that cannot be balanced away by saying that there are tremendous benefits. It can't threaten the reliability of the electricity grid, which means that, again, EPA cannot undertake these kinds of substantial transformations or restructuring that would ultimately threaten our access to electricity in this country. And then there are additional limits under the term "system of emission reduction" that we think would further guard against things like offsets or taxes or simply shutting down plants.

EPA can't do those things because they wouldn't qualify as a system of emission reduction.

Samuel A. Alito, Jr.: I really don't see what the concrete limitations are in any of what you said.

When you take in -- if you take the arguments about climate change seriously and this is a matter of survival, so long as the system that you devise doesn't mean that there isn't going to be -- there isn't going to be electricity, and so long as the costs are not absolutely crushing for the society, I don't know why EPA can't go even a lot further than it did in the CPP.

Elizabeth B. Prelogar: Because the D.C. Circuit, which has principally been responsible for looking at these types of actions, has interpreted those requirements to be real constraints here.

And EPA cannot undertake action that would threaten the industry with unreasonable costs. So I think this just underscores why it's -- it's problematic to try and think about exercises of authority in an abstract way without a currently applicable regulation before you to actually measure these kinds of things.

Samuel A. Alito, Jr.: Well, under your interpretation, is there any reason why EPA couldn't force the adoption of a system for single-family homes that is similar to what it has done in -- what it is claiming it can do with respect to existing power plants?

Elizabeth B. Prelogar: The limit on that is the fact that EPA has never listed homes as a source category and couldn't do so because they are far too diverse and differentiated.

You couldn't sensibly apply the statute to them because you wouldn't have an adequately demonstrated system that could be cost-effectively installed at each and every home given how different they are. And I would just emphasize, Justice Alito, that even their own example of homes, which is that -- an idea that EPA would require the installation of solar panels on homes, that just shows the problem with their interpretation because that is a quintessential inside-the-fence-line measure.

It's a technological solution at the home that reduces emissions at the home. So the -- the interpretation they're asking the Court to adopt doesn't address those concerns.

Instead, it's the express constraints in the statute that we think prevent that.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Breyer?

Stephen G. Breyer: I -- I do have a quick question because I -- I think it's important to get this straight in my mind. The reason I thought that the CPP is alive and there, this is the reason: On page 37a of -- which has the opinion of the D.C. Circuit, it says: "At the outset, the ACE Rule repealed the Clean Power Act." Okay? It explained it had to do that, the EPA, because the statute made them do it. Then I look to 161, where they say -- 161a, where they say what they did.

They say the only permissible interpretation, that's what ACE thinks, and -- but we cannot -- where a statute grants an agency discretion, but the agency erroneously believes it doesn't have it, we cannot uphold the result, correct, as an exercise of the discretion that the agency disavows.

All right? Got that? Then they say: And the regulation must be declared invalid.

Okay, that's ACE. That's ACE they're talking about.

We conclude that the EPA fundamentally has misconceived the law such that its conclusion may not stand.

Its conclusion was to get rid of CPP.

Elizabeth B. Prelogar: It's --

Stephen G. Breyer: And then it says we hold the ACE Rule must be vacated and remanded to the EPA so the agency may consider the question afresh in light of the ambiguity we see. So where is it it says that CPP doesn't exist? It says ACE is wrong, we remand it for reconsideration.

Now you tell me what to read.

Elizabeth B. Prelogar: So I think where we're maybe talking past each other, Justice Breyer, is that we think that the D.C. Circuit would have -- would have had to expressly say and so the CPP comes back into effect. Of course, we don't dispute one bit that the D.C. Circuit vacated ACE and therefore vacated the embedded repeal rule.

But there is a body of precedent in the D.C. Circuit about what you do when a rule is invalid and whether it automatically bring backs -- brings back the prior regulatory regime.

Stephen G. Breyer: So, when they say the ACE Rule must be vacated so that the agency may "consider the question afresh" --

Elizabeth B. Prelogar: Exactly.

So that goes back to the agency --

Stephen G. Breyer: -- that means consider it afresh even though the rule that they're trying to get rid of is gone?

Elizabeth B. Prelogar: That rule is gone --

Stephen G. Breyer: Okay.

Fine.

Elizabeth B. Prelogar: -- but they're not bringing back the old rule.

Stephen G. Breyer: Now what do I read to make sure that's right?

Elizabeth B. Prelogar: So I would point you to a memorandum that EPA prepared after the D.C. Circuit's judgment to provide guidance to regional --

Stephen G. Breyer: Do we have that here?

Elizabeth B. Prelogar: -- administrators -- it's at JA 269.

Stephen G. Breyer: Thank you.

Elizabeth B. Prelogar: I would take a look at EPA's analysis of that issue, and what EPA said is it interpreted the judgment not to put CPP back into effect.

Stephen G. Breyer: Okay.

Thank you.

Elizabeth B. Prelogar: No one was advocating that result.

Stephen G. Breyer: Thank you.

Done. Done.

If that does it, that does it.

Thank you.

John G. Roberts, Jr.: Justice Alito? Justice Sotomayor? Justice Kagan?

Elena Kagan: General Prelogar, the Petitioners here say, well, you have "system" on your side, it's true, "system" is a big word, but we have on our side "standards of performance for any existing source." So why doesn't that tilt in their favor?

Elizabeth B. Prelogar: So we certainly agree that a standard of performance for an existing source means that each individual source has to be held accountable for operating its plant in conformance with that standard. But where I think their interpretation breaks down is there is nothing in that language that says that each plant has to take identical action or the emissions reductions have to be achieved from each plant in an identical way. And if I could just use an example of a -- a trading scheme, which is commonplace in this sector, you can imagine a best system that involves a technological solution, like carbon capture and sequestration, paired with trading, and a plant can decide, well, it's cost-effective to put in the -- the carbon capture and storage, we'll do that, and, in fact, we'll reduce our emissions even below the limit and generate a credit. Another plant that's differently situated and would incur far greater expense to put in the technology is going to be better off in the trading system to buy the credit. And the system is operating as intended.

It is reducing emissions across the source category as a whole.

It's just doing so in a very cost-effective way, which I think explains why the power plants by and large are on our side in this case.

They want that kind of flexibility because this is business as usual for them. There's no apparent reason from that language, "standard of performance for an existing source," to think that Congress instead said, no, rigidly, all of the plants have to put in the carbon capture and storage, even if that's going to be no greater emission reduction and come at far greater cost to them.

So we just think that the terminology can't bear the weight that they would place on it. And if I could make one final point on all of this.

That, of course, is language that governs what the states can do, and all the normal presumptions here, the federalism canon, major questions, I think, provides no basis to adopt their interpretation, which would narrowly constrain what states and sources can do for compliance.

John G. Roberts, Jr.: Justice Gorsuch? Justice Kavanaugh?

Brett M. Kavanaugh: On major questions, I just want to repeat two things from UARG and if you would caution us against using these as -- as continuing standards for major questions. One thing we said is that Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance.

And the second thing we said is that the Court greets with a measure of skepticism when agencies claim to have found in a long-extant statute an unheralded power to regulate a significant portion of the American economy. Do you have any disagreement with those two principles?

Elizabeth B. Prelogar: No.

I certainly recognize the Court has used that as a basis to apply major questions, but I certainly dispute that either of those principles could carry the day here. With respect to vast economic and -- and political significance, of course, there's no agency regulation to review, but even looking at how the statutory scheme operates, I -- I don't see how EPA could issue that kind of regulation without transgressing the other limits. If it were really a transformational type of regulation, it wouldn't be adequately demonstrated.

It wouldn't be what the industry is already doing to control pollution.

It wouldn't be cost-effective.

Maybe it would transform the nature of our reliance on particular forms of energy and so threaten the -- the reliability of the grid. So, in all of those ways, I just don't think you can get to that end result of saying that the statute would necessarily encompass those kinds of effects and certainly not through this inside/outside-the-fence-line restriction. And then, finally, with the unheralded power language that you read, you know, this is a statute where the Court has already recognized in American Electric Power that Congress spoke directly to the issue of who EPA should regulate, existing power plants, what it should regulate, their greenhouse-gas emissions, under this exact provision, Section 7411(d). And I acknowledge in a colloquial sense that that seems like a pretty big deal, but that is right in EPA's wheelhouse because this Court already recognized that Congress conferred on EPA, the expert agency, the authority here to make those judgments.

Brett M. Kavanaugh: So you don't dispute the general principles, but you think the general principles don't apply to this particular situation?

Elizabeth B. Prelogar: I think that they both don't apply to this situation and that those principles are never something the Court has looked at without taking stock of the actual effects of a particular regulation. So it hasn't referred to those types of principles in a context outside the -- the idea that there really are -- there really is an agency regulation that is -- is having that kind of transformative effect.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett? Thank you, General. Ms. Brinkmann.

Beth S. Brinkmann: Mr. Chief Justice, and may it please the Court: The statutory framework Congress created in Section 7411 is critical to the power companies.

For years, the power companies have used emissions trading, generation shifting, and other measures to reduce emissions while keeping the lights on at reasonable cost. The ACE Rule would exclude those measures from the BSER because they are not at or to a source, but nothing in the statute excludes them. Congress directed the expert agency to look to reality when it makes the empirical determination of the best system of emission reduction for the source category. Congress would have expected the agency to consider emissions trading.

Congress had allowed emissions trading by fossil fuel plants to control emissions of various pollutants for decades. We know that Congress did not impose the ACE Rule restriction on the BSER because of the other sections of the statute where Congress did narrow the text to -- for certain other emissions limitations but not in 1174(a). The ACE Rule would eliminate significant, long-standing, cost-effective means of lowering emissions.

That's why the power companies urge rejection of the ACE Rule while embracing the many limits that the Clean Air Act place on EPA's authority. I welcome questions from the Court.

Clarence Thomas: Ms. Brinkmann, I know you have some concerns about how the major questions doctrine was used here, but have you seen 7411 used in this way in previous regulatory actions by EPA?

Beth S. Brinkmann: Yes.

In 2005, Your Honor, the mercury rule used it in just this way.

Petitioners try and suggest it wasn't part of the BSER, but it indeed was.

And I would also point, Your Honor, not just to the actual 1174(d) mercury rule but also the acid rain rule and the Good Neighbor rule under 7410. Those were all instances where Congress said that they had to use emissions trading, for example, but they did not require it in 1174(a), but there's no indication that it excluded it. And if I could, I think that the statute really answers this question.

There are limits, many limits which the solicitor general addressed, but there's no at-and-to limit.

And if I could, I'd like to really focus on subsection (h). Subsection (h) in 7411 is a provision that is used as an alternative to (a).

Under (h), that is the provision that says, if a standard of performance is not feasible for certain reasons, then -- I'm going to quote, this is on page 9a of the solicitor general's gray brief -- "he may instead" -- instead of 1174(a), what we've been talking about -- "he may instead promulgate a 'design, equipment, work practice, or operational standard or combination thereof' which reflects the best technological system of continuous emission reduction." That is the alternative to (a).

Those limits and restrictions are not in (a) in the best systems of emission reduction.

So we know that it's not in the text and we know, when you look at the adequately demonstrated provision of 1174(a), of course, emissions trading certainly would have been considered because it was already being done by fossil fuel plants under the acid rain rule, under the Good Neighbor provision, and there had been the mercury rule. The other thing when you're looking at adequately demonstrated, there is a -- since 2009, there's been a regional greenhouse gas initiative where many states do generation shifting. So the statute answers the question in this case.

It is clear from that that the best system of reduction -- emissions reduction, which is a benchmark that the EPA sets, that the emissions guidelines that they set using the BSER is not prohibited from using these very standard practices --

John G. Roberts, Jr.: Well, what about --

Beth S. Brinkmann: -- of the power companies.

John G. Roberts, Jr.: -- what about not so standard? Could the best system of emission reduction adequately demonstrated involve shutting down a plant?

Beth S. Brinkmann: No, Your Honor.

And that goes to these other constraints that are in the structure of the statute.

At the beginning of the statute, it talks about categories of sources.

That's the predicate for the ability to EPA to even regulate under 1174(a).

You look at 1174(b), and (b) talks about the agency has to first list categories of sources, so --

John G. Roberts, Jr.: Okay.

Okay. I -- I haven't gotten to the part yet where they can't do that.

Beth S. Brinkmann: Right, because it's about reducing the emissions in that category source.

John G. Roberts, Jr.: Right.

Beth S. Brinkmann: It's not about reducing the production of energy.

Indeed, that's contrary --

John G. Roberts, Jr.: Well, why wouldn't reducing the emissions in a category source require reducing them to zero?

Beth S. Brinkmann: Because the purpose is to reduce emissions while maintaining power and energy.

That's what's so important to the power companies about the reliability of this very complex power grid that's --

John G. Roberts, Jr.: Well, what's all the stuff about generation shifting then if you can't generate -- you can't shift generation down to zero? You -- I mean, would it be all right if you -- this resulted in generation shifting requiring a 10 percent reduction?

Beth S. Brinkmann: One of the explicit requirements of 1174(a) is to consider the energy requirements, and saying that a -- basing the best system of emission reduction on the fact that some plant had to be shut down is not consistent with that.

It's not about reducing production.

It's about keeping the production but reducing emissions.

John G. Roberts, Jr.: Well, yeah, but the whole idea is that you take that production and you shift it somewhere else, whether it's wind turbines or solar or -- or whatever.

Beth S. Brinkmann: If I could try an example, Your Honor, because the ACE Rule eliminates a lot more than generation shifting. I think I'm going to the emissions trading example that the solicitor general was talking about. There are two plants.

This is an old, aging coal plant.

It's got a couple years left. This is a new one.

There's a big turbo-charged scrubber that has to be put on.

It's just too expensive for this plant to invest in that. This plant can do it easily and reduce this to the level. So the first plant says to the second plant: If you double your reduction, I'll pay you for that.

And that's cheaper, it's more cost-effective for the power companies because the first plant can keep operating.

Emissions trading is what keeps those plants operating. And they are reducing the emissions twice as much because the second plant --

John G. Roberts, Jr.: I'm sorry, I don't see -- I -- I'm sorry, I'm being -- I'm being thick here, but I don't see how the old power plant with two years left, how it has kept operating under the scenario you just described.

Beth S. Brinkmann: Because it gets credits.

It gets the emission credits from paying the second plant to reduce twice as much its reduction.

That doubled reduction wouldn't happen except for that the first plant, it's cheaper for the first plant to pay the fancier new plant to double their reduction.

And so the first plant can live out its life because it gets those credits towards its limit. That's what these restrictions place on.

I should also say there is no ability for the agency to require our companies to invest in electric vehicles or to plant trees because the reductions of emissions have to come from the source category, and that source category is -- is where the Petitioners get off -- they keep talking about source, source.

No, it's the source category that triggers the ability for the agency to regulate. And I can also explain that language in (d) if we want to.

I know, Justice Kagan, you were asking about that.

When you look at the language about any source, it also says any pollutant, that's the introductory sentence in there saying, states, you have to do a plan for any -- it's what Justice Breyer was saying; in other words, all of them.

You know, you can't leave anything unregulated. We do agree that the state plans and the standards of performance go to individual plants.

And if you look later in (d), actually, at the bottom, it talks about when we can take into -- when the state can take into account the remaining useful life, it says any particular source. I mean, it is very clear when you march through it that the BSER here, which sets a benchmark, this is not command-and-control regulation, this is a benchmark that then is used for the emission guidelines, that in that sense we're looking at the source category.

Sonia Sotomayor: Ms. Brinkmann, as I read (d)(1) and as -- just going to what Justice Roberts asked you, a state could, in its judgment, exempt a particular power plant from regulation, correct?

Beth S. Brinkmann: The statute explicitly says in (d)(1) that they can take into account the remaining useful life, and that's why this kind of emissions trading in the credits is so important because it's not just --

Sonia Sotomayor: But they don't have to do that.

They could do an exemption for that source.

Beth S. Brinkmann: Yes.

That's correct, Your Honor.

Sonia Sotomayor: Because the credit could be too expensive, that it could kill the plant now rather than in two years, and so a state could decide that, correct?

Beth S. Brinkmann: And -- yes.

And that's what such a huge problem is with the Petitioners' argument suggesting that our flexibility and ability to comply with the state plans also would somehow be cabined by this. And the statutory text cannot support that.

The framework cannot support that.

Sonia Sotomayor: Thank you.

Stephen G. Breyer: By the way, what is -- before you finish with (d), I didn't quite get it.

So (d) has to do with state plans --

Beth S. Brinkmann: Yes.

Stephen G. Breyer: -- applied to existing sources, and it says the administrator shall prescribe regulations under which -- this is the EPA -- under which each state shall submit a plan which -- and now we're talking about the state plans -- establishes standards of performance -- and that includes the word "system" standards of performance -- for any existing source. Now you heard your -- your -- your -- your colleague, your brother on the other side. He said no.

He said that it says for any existing source, so it means a system for any existing source, and his point is, if that's what the state has to do, surely the EPA plan has to be similar. Now there may be some space in there, but how do you interpret those words which he brought up?

Beth S. Brinkmann: So, Your Honor, the next three words after you stopped reading say "for any air pollutant."

Stephen G. Breyer: Yeah.

Beth S. Brinkmann: So, if you understand what that sentence is saying, it's saying you have to do it for all of them, for any in your state so none of them remain in --

Stephen G. Breyer: Oh, all right.

But carbon is an air pollutant.

And so, if it's for any air pollutant --

Beth S. Brinkmann: Right.

Stephen G. Breyer: -- you have to do it for carbon.

Beth S. Brinkmann: Right.

So --

Stephen G. Breyer: And what you have to do is provide a standard of performance for any existing source of carbon.

Beth S. Brinkmann: That's the -- the standard of performance that the states do.

Stephen G. Breyer: Yeah.

Beth S. Brinkmann: And if you go further down, Your Honor, at the bottom, it talks about also regulations of the administrator shall permit the state in applying a standard performance to any particular source under a plan submitted under state -- into consideration remaining useful life. That is clearly the -- the state system.

If you go back to --

Stephen G. Breyer: Yeah, I know it's the state system.

Beth S. Brinkmann: Right.

Stephen G. Breyer: Nobody says it isn't.

Beth S. Brinkmann: But, if you're going back to (a)(1) and we talk about the best system of emission reductions, that's the benchmark that is then -- that is the best system of reduction that is then used to set this benchmark, this emissions guideline. There, Congress spoke very clearly, and the reason they can, you know, do this is because it's a category of source under (b) that's been listed, and so they can only do this if there's a source category. So then you look at the source category, and what's really important, you have to look at what's adequately demonstrated.

That means you look to reality.

You look to what's been going on.

And we know emissions trading has been going on. And we know, when Congress meant to limit something and to say no, no, you can only consider technology, you can only do more at two things, they did things like in (h).

And it's not just (h), the alternative I talked about before.

It's also in 7412 and a host of other provisions. In (a), which is addressing the best system of emissions reduction here, there's no limitation on that, and that makes complete sense because that's what Congress wanted to do, particularly in this very complicated electrical grid scenario, where you look at the industry, you look what's adequately demonstrated.

Sonia Sotomayor: Do states do a plan that includes each power source in their grid? Meaning -- or is it like what the EPA does, a general standard, and then the -- the states decide how it applies to each source? That sounds to me like the state comes in and says, for this kind of source, you have to do this; for that kind of source, you have to do that.

Am I correct about that?

Beth S. Brinkmann: Yes.

And the states, in fact, have to go through and even identify all the sources are covered based on, you know, their size and their emissions and that type of thing.

Sonia Sotomayor: So they -- they sort of form-fit for that -- they fit for each source what their plan is?

Beth S. Brinkmann: And it's -- yes, Your Honor.

It's very --

Sonia Sotomayor: And so that's why, for each plant, there could be a different set of systems that meets the goal, correct, a different way for each plant?

Beth S. Brinkmann: There could be different measures that they use, Your Honor, and that's why it's so important --

Sonia Sotomayor: And so that's why what you were saying --

Beth S. Brinkmann: Yes.

Sonia Sotomayor: -- which is to say for each source doesn't mean that it limits you to in-fence regulation?

Beth S. Brinkmann: Not at all.

Sonia Sotomayor: It lets you do whatever regulation is necessary to reach the standard?

Beth S. Brinkmann: Although I would step back and say, of course, not whatever because it has to be reducing emissions, not power.

It has to be reducing emissions from this category source. And I think that's the kind of word game that comes in.

Oh, well, then there's no limit.

No.

The fact that "at" and "to" is not a limit does not mean it's a free-for-all. There are other limits. And I also would say, Justice Sotomayor, that I really think goes to that, it's really significant to me that when you read the term "standard of performance" in 7411(a)(1), it says it has to be a standard which reflects the degree of emission limitation that's achievable.

That -- that is going to exactly how this works.

You know, it's this benchmark.

It's not this command-and-control regulation that EPA does. Now it's also, I think, you know, significant when you look at the way in which the states then have the flexibility and the power companies certainly have the flexibilities to do something as important and as critical as emissions trading, which reduces the emissions that would not otherwise be reduced in this source category and yet allows infrastructure investment to remain, allows plants to live out their life in a more economic way, and this is incredibly cost-effective.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas? Justice Breyer? Justice Alito?

Samuel A. Alito, Jr.: Yeah.

May I ask you to respond to -- I think it was the last question that Justice Kavanaugh asked the solicitor general, and that has to do with the scope of the major questions doctrine, and he pointed out language referring to questions of vast political and economic significance and reading a new interpretation into a long-dormant statute.

Her answer was that those would be important factors in considering whether the -- the major questions doctrine applies.

At least that's how I understood her answer. If that is correct, would you agree with it?

Beth S. Brinkmann: It needs to be considered at less of a level of abstraction with all due respect, Your Honor.

For example, the Court has always looked to an exercise of agency authority, something the agency actually did that reflected the authority they were claiming. And I point to the OSHA vaccine case, that recent decision there, because, of course, the Court's rationale was, you know, OSHA is now regulating every employer, everybody, vaccines, outside of the workplace, and gave pause in that. But, in that opinion, it was very specific to say, you know, that's when you're taking every employer that has more than a hundred employees in this country, and I don't even know how many millions that covered.

Samuel A. Alito, Jr.: Well, I --

Beth S. Brinkmann: But --

Samuel A. Alito, Jr.: -- I take your answer to mean that we should look to what the agency is actually doing and not what it could do under a particular interpretation. Is that -- is that correct?

Beth S. Brinkmann: That's part of it, Your Honor, because there it said, you know, this might be okay for OSHA to be doing for medics or for people who work in particularly cramped areas or researchers for COVID.

That's why that's so important. And we think that, you know, considering it out of that in a more abstract way is not the threshold question.

That's why we think the statute would be --

Samuel A. Alito, Jr.: Well, how -- how would that work? Let's say an agency takes a long-dormant statute and interprets it in a way that would have vast political and economic significance if the agency exercised all of the power that it claims it has under its interpretation. But, as a first move, it adopts a fairly modest rule that only invokes, let's say, 5 percent of that power.

You would say that's not an occasion for applying the major questions doctrine.

Is that right?

Beth S. Brinkmann: I would say -- first, I just want to say I would push back on the premise that this is a long-dormant authority because it has to do with --

Samuel A. Alito, Jr.: Yeah.

No, it's a hypothetical.

Beth S. Brinkmann: Yes.

Okay.

Samuel A. Alito, Jr.: But if those conditions were met.

Beth S. Brinkmann: Of course, of course. Looking at the exercise of the agency authority helps determine whether or not it poses a question of significant consequence because, of course, Congress does sometimes, like, crystal clear give very, very important significance. So we really agree with the idea that you look at that first and if there's some ambiguity, but we think, here, the text answers it.

Samuel A. Alito, Jr.: Well, I do think --

Beth S. Brinkmann: But then, if there's ambiguity --

Samuel A. Alito, Jr.: -- I do think you're hyping my hypothetical -- you're hyping -- you are -- you're questioning my hypothetical. You're --

Beth S. Brinkmann: I'm sorry, Your Honor.

Samuel A. Alito, Jr.: -- dismissing the hypothetical.

Maybe it's not a good hypothetical.

But the agency says, here's the statute.

We think we can do a lot under this statute.

This is our interpretation.

But, for now, we're only doing a little.

We're only exercising 5 percent of that authority. And you would say no, that's not a major question because we look at just what they're doing and that's not all that disruptive. Am I right?

Beth S. Brinkmann: No.

I'd want to know as a judge what exactly they did, and then I would compare it to the statute.

You need to pressure test it against the statute first to see if there's authority for it for --

Samuel A. Alito, Jr.: I -- I'm going to ask it one more time because I think you're just disagreeing with the hypothetical. They say, we can do all this, but we're only doing this, all right? Don't question whether they -- there's ambiguity about whether they can do all of this.

They say, we can do all this, but we're only doing a little for now.

Is that -- do you rule out major questions because they haven't done it now?

Beth S. Brinkmann: I -- I don't want to say I rule it out.

If I could just -- let me get -- I think that that rests -- oh, we can do this, it's kind of like dicta in a judicial opinion.

They're saying that --

Stephen G. Breyer: I think he's saying -- do you mind if I --

Samuel A. Alito, Jr.: Yeah.

Stephen G. Breyer: Look, in tobacco --

Beth S. Brinkmann: Mm-hmm.

Stephen G. Breyer: -- suppose they started off in saying we are regulating the advertising of four-foot cigars smoked through hookahs, okay? (Laughter.)

Stephen G. Breyer: Now the problem is, can you regulate tobacco? And if you can regulate tobacco, that's a very big deal. But they say, no, it isn't.

It's just this tiny -- you know, there aren't -- there are only three in the whole country, so it's a little deal.

So it isn't the major question doctrine. And I think what he wants to -- I would want to know too is -- is, hey, do you apply it when it's just a little thing? Now you might say -- I guess you are trying to say it's case by case.

It depends.

Beth S. Brinkmann: I think that, you know, that helped me, Your Honor, and, Justice Alito, I really don't mean to be not answering your question, but the fact that it involved tobacco right there would be a question, and you would look at it against the statute and say I don't see tobacco there. And then you start looking at this doctrine to see, and you look at -- I -- I would say there are at least three or four issues you look at.

Is it expanding regulation over a lot more entities or people? OSHA, in the UARG case, there were millions more. Of course, here, nobody -- there are no additional entities being regulated.

It's just a benchmark.

It's not even a command and control.

The other thing I would say, it's clearly in the wheelhouse.

It's not like OSHA and -- or -- or -- or -- or CDC and landlord/tenant. The other thing that the Court has looked to a lot, Your Honor, and I think this goes to how looking at the agency is useful to know whether you look at major question, is whether it's a major question because it's contrary to what the agency has been doing in the past. And, here, we really would say that seeing what it's done like here, this "at" and "to" would eliminate emissions trading.

That's been going on for pollutants under many provisions of the statute for decades and including under this one in the -- the 2005 rule that was invalidated on other grounds, but I think that is why I -- I hesitate to say that you could do it at the threshold. I really think that it has to be the statute can answer it.

And if the statute answers it, that should be the first question. But, if it says tobacco and there's nothing in the statute about tobacco, then, you know, you need to -- to consider these other factors.

Samuel A. Alito, Jr.: Well, I won't -- I won't belabor it.

And I -- I can never equal my -- my colleague's evocative hypotheticals. (Laughter.)

Samuel A. Alito, Jr.: But, you know, what happens after they -- the 5 percent case, they say, oh, this is not a big deal, it's not major, and then the agency says, well, no, you know, we're going to claim 20 percent.

And then they -- later they say we're claiming 40.

And, eventually, they get up to 80, 90, or something like that.

At some point, can it become a major question?

Beth S. Brinkmann: It may.

I mean, here, it's not a percentage.

It's -- you know, it's a -- a different sort of thing.

And, to me, that is the problem that there's just -- and, again, you go to the text first, but if there's some new extraordinary exercise of power that would come in and the statute doesn't answer it and there is some ambiguity, then we would say that's what this Court's precedents teach us to look at. But, in each of the Court's precedents, Your Honor, they have looked at the agency action first and they have pressure tested it against the statute before jumping to major question.

John G. Roberts, Jr.: Justice Sotomayor, anything further?

Elena Kagan: You know, it's not always the case, Ms. Brinkmann, that a lawyer responds to one of Justice Breyer's hypotheticals by saying that's really helpful. (Laughter.)

Beth S. Brinkmann: Well, I appreciated it.

Elena Kagan: But that's not my question. I think it was the Chief Justice who asked General Prelogar, like, if -- if -- if the major questions doctrine is supposed to be asking some form -- some question, like, is it really surprising that the agency did this in the way that it was really surprising that the FDA regulated tobacco or whatnot. And General Prelogar's answer to that question very much from an agency perspective was, like, it's not really surprising at all after Massachusetts versus EPA at the very least that this agency is doing greenhouse gas regulation.

This is in -- you know, exactly in its wheelhouse. But I -- I hear you making a kind of different argument, and I just want to make sure that I'm reading you right because you're saying not from the agency perspective but instead from the power plant perspective something along the lines of: If you do anything about the way power plants operated, which maybe we do and maybe we don't, but you would know that we do these kinds of outside-the-fence things all the time and that it's a sensible way for all of us to proceed and that if you took that away, you would be essentially -- you know, it's not surprising because that's what the industry does. So is that right?

Beth S. Brinkmann: Yes, Your Honor, and we would say that what Congress did in the statute reflects that.

They told the agency, you have to look at what's adequately demonstrated.

That's not a very common directive that Congress gives to agencies, which we welcome because we think there are abundant limitations in this statute. So they have to look to what adequately is demonstrated.

Also, not only has the -- the power companies been engaging this, but it's critical that, you know, these emissions trading in particular, I think it also explains and understands the statutory scheme, why it's source categories. That's what the agency has to list under (b).

And they figure, okay, we're going to look at that now, what's adequately demonstrated in the source category, and then we're going to look through and we're going to look -- and, you know, Petitioners acknowledge this for other factors in 7411(a).

So did the ACE Rule. When they were looking at whether something was adequately demonstrated, they looked, of course, at source category, not for one individual source.

That's not what 7411(a) is about. So, yes, Your Honor, we -- we do say that from our perspective, you know, that's what's important to the statutory scheme in 7411 that Congress set up and directed the agency to look to those standard practices that we've been engaging in. And I think, under the acid rain rule, for example, it's -- it's not the same pollutant, but it's certainly a system that Congress itself set up in 1990.

At the same time it did not amend 7411(a) to limit it in that way, it didn't require us to do it, but it certainly would have been in that, you know, basketful of measures to look at to see what best system of emissions reduction should be used for 7411(a).

Elena Kagan: And is there any necessary relationship or, indeed, is there even a probable relationship between this inside-the-fence and outside-the-fence regulation on the one hand and huge economic impact on the other?

Beth S. Brinkmann: Not at all, Your Honor.

That's why I tried to use in my oversimplified example about emissions trading two coal plants with a really expensive scrubber.

No, I mean, something could be really expensive and, you know, it could cause generation shifting, it could cause all manner of things, but it does not align with the "at" or "to." A colleague of mine explained to me it was orthogonal, and I thought that was an interesting word that I looked up and understood that it just doesn't align with the "at"/"to" distinction.

There could be things "at" that are quite, you know, exorbitant; there can be things that are outside. For example, pre-washing coal at another site that then comes onto the actual facility, that's something that would be outside the fence line or not "at" and "to," and that makes a little sense.

John G. Roberts, Jr.: Justice Gorsuch? Justice Kavanaugh?

Brett M. Kavanaugh: I think the potential surprise here, to pick up on Justice Kagan's question, doesn't go to regulating CO2, as she rightly says, but is using a cap-and-trade regime given the statutory language. And I don't -- your responses to that, I think, fall into two categories.

One is cap-and-trade is much better for the industry. It makes a lot more sense, more flexibility, industry prefers it, it's good policy, it's better than command and control.

And I think those are all -- you know, those are solid arguments that we -- we need to consider. The second, on the more legal question, is, well --and you've mentioned it a few times -- the acid rain program was put in by Congress.

That was cap-and-trade in -- in 1990. And then, second, in your brief and today, you've emphasized -- more in the brief -- the 2005 mercury rule that the second Bush administration put in.

And you've put some emphasis on that.

And that was cap-and-trade. And so the question there, though, is that rule was then vacated in 2008 --

Beth S. Brinkmann: Yes.

Brett M. Kavanaugh: -- on -- on different grounds.

How should we think about that 2005 mercury rule as we think about this issue? What significance should it play? Because you did play it up quite a bit in the brief.

Beth S. Brinkmann: If I could, I think there's one predicate argument that I would make, Your Honor, that I think you have to look at subsection (h) as a textual matter.

That's what tells us that 1174(a) does not have -- it's not excluding things and saying you can only look at technology and things "at" and "to." So, if you don't have to do that, then, of course, you look at emissions trading and all because everybody knows that's out in the basketful of tools. But, under (h), Congress said, if you can't do (a) for -- because it's not feasible, you do this other thing, and you can promote a design, equipment, work practice, or operational standard, or combination thereof. So that's not in (a).

So then you go to (a) and you look at the text, and it says, what's out there that's adequately demonstrated? Well, we know that what's adequately demonstrated for this source category, fossil fuel plants, is what's at issue in the acid rain rule.

That was in 1990. There's also in 7410, which is cross-referenced, but setting aside that textual argument, we know it was in the basket of measures that could be made because there's the cross-state air pollution control rule that this Court upheld in the Homer case.

That also involves emissions trading. So we know that all of that was out there, and it's -- it's based on the text, the structure, the direction to look at "adequately demonstrated." So I would say, yes, it's very cost-effective for us.

That's why it's adequately demonstrated.

And it's really important to the grid.

I think that's your point.

But it's not a policy argument.

It's looking at what the text of the statute tells the agency to do when they set this benchmark, What's adequately demonstrated. The mercury rule --

Brett M. Kavanaugh: Right.

Beth S. Brinkmann: -- was invalidated on other grounds, absolutely, but it did include emissions trading and generation shifting in the BSER.

I know Petitioners are trying to say, oh, it was only used for compliance.

If you go to the Federal Register and you look at that, they explain it as part of the BSER, the Best System of Emission Reduction. And that's what we're talking about here today.

It's whether or not there is a restriction against the agency taking into account anything other than "at" and "to" for that.

And we would say the critically important aspect that also under (d), that the power companies have flexibility in compliance.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: No.

John G. Roberts, Jr.: Thank you, counsel. General See.

Lindsay S. See: Thank you, Mr. Chief Justice. Moving first to justiciability, it's critical today that General Prelogar has backed away from the stay, and that's for good reason. It doesn't make sense that a doctrine that's meant to protect parties like us from the effect of the judgment should be the very thing that can deprive this Court of jurisdiction. So now we have the new argument today that the effect of the judgment does not actually bring the Clean Power Plan back to life.

That's not true.

In addition to the portions of the record that Justice Breyer mentioned, we can also look at Joint Appendix 215, where the D.C. Circuit said that it vacated the ACE Rule and the embedded CPP repeal. The response we have from General Prelogar is that there's an internal memorandum from EPA that said that that didn't actually do what those words said.

But, again, an internal memorandum that none of the Petitioners were able to have any input in by the side who was actually trying to have -- defeat this Court's jurisdiction should not be held against us.

And there's no authority in this Court's precedent that that can be enough to erase the actual language of what the court below did. All that's left then is the prospect of new rulemaking, but, again, the Respondents have not challenged that they have to show that we are certain not to be hurt by the new rule. They said in their brief that they might enact the very same provision, and they have told you nothing different here today.

So this Court should proceed to the merits. When it comes to the potential limits that have been put on the statute, General Prelogar said that states actually have more options under a plan like the CPP.

But she referred to things like carbon capture and sequestration, natural gas co-firing.

The CPP also said that those would be impossible for the vast majority of sources, so that's not a real option available. Ms. Brinkmann talked about what's achievable for the source category, but she's certainly moving beyond the source category, and the CPP did there.

It's not simply what coal-fired or natural gas power plants can do. Generation shifting, under the guise of the CPP, requires bringing into that category renewables as well, an entirely different sector. And so that's what takes us into the major question territory.

This is a major question because it allows EPA to determine what the power sector as a whole should look like and who can be in it.

It transforms the statute from something that is about how a particular source can operate more efficiently. No matter which of the factors this Court looks at from its previous decisions, this is major.

This is new power.

There are 70-plus regulations under 111(b) that have not used this interpretation of the statute.

The only example given today is the clean air mercury rule, but there, in the Federal Register, EPA was very clear that the actual emission limitation was based on physical and chemical carbon capture technologies. Certainly, it said that there could be other compliance mechanisms.

But that's not the same thing as saying the actual emission limit was based on outside-the-fence-line measures. So this is new power.

This is transformative power.

It's power that goes into an area of traditional state authority, which is energy and utility regulation. So whatever definition of major questions the Court does, this is far on the other side of it.

This Court has full power to give us an answer, and it should.

This is a critical question.

The Court has a rule before it, and it should give an answer. Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.