Document LJw8kXROQGX30Z6wLYbVn0Vx5

Official - Subject to Final Review 1 IN THE SUPREME COURT OF THE UNITED STATES 2 -----------------x 3 MASSACHUSETTS, ET AL., : 4 Petitioners : 5 v. : No. 05-1120 6 ENVIRONMENTAL : 7 PROTECTION AGENCY, ET AL. : 8 -----------------x 9 Washington, D.C. 10 Wednesday, November 29, 2006 11 12 The above-entitled matter came on for oral 13 argument before the Supreme Court of the United States 14 at 10:02 a.m. 15 APPEARANCES: 16 JAMES R. MILKEY, ESQ., Assistant Attorney General, 17 Boston, Mass; on behalf of Petitioners. 18 GREGORY C. GARRE, ESQ., Deputy Solicitor General, 19 Department of Justice, Washington, D.C.; on 20 behalf of Respondents. 21 22 23 24 25 1 Alderson Reporting Company Official - Subject to Final Review 1 C O N T E N T S 2 ORAL ARGUMENT OF 3 JAMES R. MILKEY, ESQ. 4 On behalf of the Petitioners 5 ORAL ARGUMENT OF 6 GREGORY C. GARRE, ESQ. 7 On behalf of the Respondents 8 REBUTTAL ARGUMENT OF 9 JAMES R. MILKEY, ESQ. 10 On behalf of Petitioners 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Alderson Reporting Company PAGE 3 25 52 Official - Subject to Final Review 1 P R O C E E D I N G S 2 (10:02 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear argument 4 first today in 05-1120, Massachusetts versus 5 Environmental Protection Agency. Mr. Milkey. 6 ORAL ARGUMENT OF JAMES R. MILKEY 7 ON BEHALF OF THE PETITIONERS 8 MR. MILKEY: Mr. Chief Justice, and may it 9 please the Court: 10 If I may, I'd like to frame the merits very 11 quickly and then turn immediately to standing. Although 12 the case before you arises in an important policy area, 13 it turns on ordinary principles of statutory 14 interpretation and administrative law. EPA made a 15 decision based on two grounds, both of which constitute 16 plain errors of law reviewable under any standard. 17 EPA's principle grounds was that it lacked authority 18 over the emissions of the four substances at issue, even 19 if they, in fact, endanger public health and welfare. 20 That legal conclusion fails as a matter of law. 21 As a fallback position, EPA declined to 22 consider if these substances are endangering public 23 health and welfare, claiming its policy approach made 24 more sense than the regulatory scheme encompassed in 25 section 1202 of the Clean Air Act. Although EPA 3 Alderson Reporting Company Official - Subject to Final Review 1 possesses a good deal of discretion in applying the 2 statutory endangerment test, it cannot rest its ruling 3 on impermissible grounds as it did here. 4 We are not asking the Court to pass judgment 5 on the science of climate change or to order EPA to set 6 emission standards. We simply want EPA to visit the 7 rulemaking petition based upon permissible 8 considerations. 9 And now, Your Honor, I'd like to turn to 10 standing. Petitioner showed a wide variety of injury in 11 fact, all of which are the kinds of harms the statute 12 was aimed at preventing. For example, our uncontested 13 affidavits establish that as a matter of physics, the 14 more greenhouse gases accumulate in the air, the more 15 temperatures are going to rise, ocean waters expand, and 16 the seas rise. And of course as the seas expand, they 17 rise everywhere around the world. Some areas such as 18 Massachusetts will be hit particularly hard because 19 we're also subject to a land subsidence, but that -- 20 JUSTICE SCALIA: I thought that the standing 21 requires imminent harm. If you haven't been harmed 22 already, you have to show the harm is imminent. Is this 23 harm imminent? 24 MR. MILKEY: It is, Your Honor. We have 25 shown that the sea levels are already occurring from the 4 Alderson Reporting Company Official - Subject to Final Review 1 current amounts of greenhouse gases in the air, and that 2 means it is only going to get worse as the -- 3 JUSTICE SCALIA: When? I mean, when is the 4 predicted cataclysm? 5 MR. MILKEY: Your Honor, it's not so much a 6 cataclysm as ongoing harm. The harm does not suddenly 7 spring up in the year 2100, it plays out continuously 8 over time. And even to the extent you focus on harms 9 that occur in the future, there's nothing conjectural 10 about that. Once these gases are emitted into the area, 11 and they stay a long time, the laws of physics take 12 over. 13 JUSTICE SCALIA: Well, there's a lot of 14 conjecture about whether -- I gather that there's 15 something of a consensus on warming, but not a consensus 16 on how much of that is attributable to human activity. 17 And I gather that -- what is it? Something like seven 18 percent of the total carbon dioxide emissions are 19 attributable to automobiles in the United States? 20 MR. MILKEY: It's actually about 6 percent, 21 Your Honor. 22 JUSTICE SCALIA: 6 percent? Thank you. 23 MR. MILKEY: But it's important to point out 24 as well, though, that in the ruling we challenge, EPA 25 has disavowed authority over all U.S. sources of 5 Alderson Reporting Company Official - Subject to Final Review 1 emissions, which constitute about 20 percent of 2 global -- 3 JUSTICE SCALIA: Yes, but that doesn't go to 4 the harm that you're claiming. I mean, we're talking 5 about the, you know, the standing issue right now. And 6 if you've been harmed, you've claimed harm because of 7 carbon dioxide emissions, right? 8 MR. MILKEY: Agreed, Your Honor. But my 9 point was that they disclaimed authority over all 10 sources of carbon -- 11 JUSTICE SCALIA: I understand, but that has 12 nothing to do with whether you have standing. That has 13 to do with the merits of the case. But on the standing 14 point, only new cars would be affected, right? So even 15 the reduction of the 6 percent would take a few years, 16 wouldn't it? 17 MR. MILKEY: It would take a few years, Your 18 Honor, but it is a basic premise of the Clean Air Act 19 that vehicle fleets regularly turn over -- 20 JUSTICE SCALIA: I understand. But it goes 21 to how imminent the harm is and how remediable the 22 imminent harm is. If, in fact, the 6 percent will only 23 be reduced to maybe five and a half in the next few 24 years, your -- 25 MR. MILKEY: Your Honor, we have shown in 6 Alderson Reporting Company Official - Subject to Final Review 1 the record that a 40 percent reduction in carbon dioxide 2 from cars is currently feasible. And since those 3 emissions account for -- 4 JUSTICE SCALIA: Not in the first year. 5 MR. MILKEY: No, no. We agree, Your Honor. 6 JUSTICE SCALIA: I mean ultimately, when all 7 the cars currently on the roads are off and the new cars 8 with, you know, whatever measures you think will reduce 9 the carbon dioxide are on the road, then 40 percent 10 would be the figure. 11 MR. MILKEY: Yes, Your Honor. 12 JUSTICE GINSBURG: But whatever position 13 holds for motor vehicles would similarly hold for power 14 plants, and has there been any application to EPA with 15 respect to carbon dioxide in power plants? 16 MR. MILKEY: There has, Your Honor. In 17 fact, EPA has turned down a rulemaking petition to 18 regulate them under the new source performance standard 19 section of the Clean Air Act, and that is currently on 20 appeal in the D.C. Circuit, but it is currently stayed 21 pending the outcome of this case, and it just -- 22 CHIEF JUSTICE ROBERTS: Do you get the 23 benefit of that broader allegation in establishing your 24 standard? In other words, if you've challenged EPA's 25 refusal to apply a particular level of greenhouse 7 Alderson Reporting Company Official - Subject to Final Review 1 regulation to a particular model of car, can you say, 2 well, they're following the same approach to a coal 3 powered -- coal fueled power plant, and so we get to 4 establish a broader injury? Or, aren't you limited to 5 the specific legal challenge you're raising here? 6 MR. MILKEY: Your Honor, I think it's 7 actually more direct in the sense that in the decision 8 we challenge here, they said greenhouse gases are not 9 air pollutants under any regulatory provision of the 10 act. So at least on -- 11 CHIEF JUSTICE ROBERTS: Don't you have to 12 show injury from their decision here? The fact that 13 other people, or you presumably as well might be injured 14 by their decisions that you are not challenging here, 15 that doesn't help your standing here, does it? 16 MR. MILKEY: I believe it does, Your Honor, 17 because we cannot win that other case unless we win this 18 case here in terms of the authority question. And in 19 any event, it is important to point out that because of 20 the scale of the problem, relatively small percentage 21 deductions in global emissions can lead to real world 22 results. 23 JUSTICE KENNEDY: But at the outset, you 24 made this, some of this perhaps reassuring statement 25 that we need not decide about global warming in this 8 Alderson Reporting Company Official - Subject to Final Review 1 case. But don't we have to do that in order to decide 2 the standing argument, because there's no injury if 3 there's not global warming? Or, can you show standing 4 simply because there is a likelihood that the perceived 5 would show that there's an injury? 6 MR. MILKEY: Your Honor, especially in this 7 case where none of our affidavits were challenged, I 8 don't think the Court needs to go there ultimately on 9 the merits because we showed through our uncontested 10 affidavits that these harms will occur. There was no 11 evidence put in to the contrary, and I would add that 12 the reports on which EPA itself relies conclude that 13 climate change is occurring in -- 14 CHIEF JUSTICE ROBERTS: Those affidavits 15 talked about the fact that if the government starts to 16 regulate, the technology is going to change, if the 17 technology changes, other governments will adopt it, and 18 all that, and that strikes me as sort of spitting out 19 conjecture on conjecture, the sort that we disapproved 20 of. 21 MR. MILKEY: Your Honor, although we believe 22 we have shown other governments will follow suit, we are 23 not in any sense relying on that. We can easily show 24 our standing without relying on that. And that's 25 because -- 9 Alderson Reporting Company Official - Subject to Final Review 1 CHIEF JUSTICE ROBERTS: Same argument if the 2 automobile emissions were 1 percent contributors? 3 MR. MILKEY: It would be the same argument. 4 And I would add that EPA in other contexts has 5 determined on several occasions that a 1 percent 6 contribution is significant under the Clean Air Act. 7 CHIEF JUSTICE ROBERTS: How is that 8 consistent with our taxpayer standing cases where the 9 argument is that a taxpayer doesn't have standing to 10 challenge an illegal expenditure as a general matter 11 simply because his contribution, the benefit that he's 12 claiming is so small and so widely dispersed? 13 MR. MILKEY: Your Honor, it is different 14 because here there is particularized injury that we have 15 shown. The injury doesn't get any more particular than 16 states losing 200 miles of coastline, both sovereign 17 territory and property we actually own, to rising seas. 18 JUSTICE ALITO: If you look ahead, I don't 19 know how far imminence allows you to look ahead, but 20 let's say we're looking at 5 years or 10 years, what 21 particularized harm does the record show that 22 Massachusetts will, or faces an imminent threat of 23 suffering, that can be traceable to the reductions that 24 you want to produce through these regulations? 25 MR. MILKEY: Well, Your Honor, if I can deal 10 Alderson Reporting Company Official - Subject to Final Review 1 with the traceability part of that question first, 2 traceability is easy to show here because the extent of 3 our harm is caused by the overall amount of the gases in 4 the air. And being focused on the 20 percent of all 5 U.S. sources, or the 6 percent of the cars, that's still 6 a sizeable portion of the problem, so we know that 6 or 7 20 percent is there. 8 In terms of the particular harms, similarly 9 we have shown -- 10 JUSTICE ALITO: 6 percent is the total 11 emissions, the total contribution from motor vehicles in 12 the United States, right? 13 MR. MILKEY: To the global carbon dioxide 14 emission. 15 JUSTICE ALITO: To the global. And so, the 16 reduction that you could achieve under the best of 17 circumstances with these regulations would be a small 18 portion of that, would it not? 19 MR. MILKEY: It would be, we have shown in 20 the record it would be about a two-and-a-half percent 21 over the time it takes to turn the fleet over. But it's 22 important that given the nature of the harms, even small 23 reductions can be significant. For example, if we're 24 able to save only a small fraction of the hundreds of 25 millions of dollars that Massachusetts parks agencies 11 Alderson Reporting Company Official - Subject to Final Review 1 are projected to lose, that reduction is itself 2 significant. 3 CHIEF JUSTICE ROBERTS: That assumes 4 everything else is going to remain constant, though, 5 right? It assumes there isn't going to be a greater 6 contribution of greenhouse gases from economic 7 development in China and other places that's going to 8 displace whatever marginal benefit you get here. 9 MR. MILKEY: Yes, Your Honor. But reducing 10 domestic emissions will reduce our harm, the harm we 11 would otherwise face regardless of what -- 12 CHIEF JUSTICE ROBERTS: Not if your harm is 13 the alleged loss of coastline. Not necessarily. It 14 depends upon what happens across the globe with respect 15 to greenhouse emissions. 16 MR. MILKEY: Your Honor, we would still lose 17 coastline but we would not lose as much because these 18 harms are cumulative, and while reducing U.S. emissions 19 will not eliminate all the harm we face, it can reduce 20 the harm that these emissions are causing. 21 So it will necessarily reduce our harm and 22 satisfy redressibility. 23 JUSTICE SCALIA: I mean, do we know that 24 that's a straight line ratio, that a reduction of 25 two-and-a-half percent of carbon dioxide -- well, two 12 Alderson Reporting Company Official - Subject to Final Review 1 and a half overall would save two-and-a-half percent of 2 your coastline? Is that how it works? I'm not a 3 scientist, but I'd be surprised if it was so rigid. 4 MR. MILKEY: Your Honor, I don't believe 5 it's established it's necessarily a straight line. But 6 I want to emphasize that small vertical rises cause a 7 large loss of horizontal land. For example, where the 8 slope is less than 2 percent, which is true of much of 9 the Massachusetts coastline, every foot rise will create 10 a loss of more than 50 feet of horizontal land. And for 11 example, in the State of New York, the Oppenheimer 12 affidavit projects that New York could well lose 13 thousands of acres of its sovereign territory by the 14 year 2020. So the harm is already occurring. It is 15 ongoing and it will happen well into the future. 16 CHIEF JUSTICE ROBERTS: What's your 17 strongest case from this Court to support your standing 18 allegation? 19 MR. MILKEY: Your Honor, what I would say to 20 that is our standing here is so much more direct and 21 particularized than, for example, the harm this Court 22 found sufficient in Laidlaw, which was -- 23 CHIEF JUSTICE ROBERTS: Laidlaw was a 24 specific citizen suit provision, wasn't it? 25 MR. MILKEY: It was, Your Honor. 13 Alderson Reporting Company Official - Subject to Final Review 1 CHIEF JUSTICE ROBERTS: So doesn't that make 2 it somewhat analytically distinct from this case? 3 MR. MILKEY: I don't believe so, Your Honor. 4 Here I think the fact that the States are showing harm 5 not only to them in a property sense, but in their 6 sovereign capacity -- 7 JUSTICE KENNEDY: What's your authority for 8 that? I have the same question as the Chief Justice. I 9 was looking at your brief for the strongest case. 10 Suppose there were a big landowner that owned lots of 11 coastline. Would he have the same standing that you do 12 or do you have some special standing as a State, and if 13 so what is the case which would demonstrate that? 14 MR. MILKEY: Well, Your Honor, first of all, 15 we agree that a large landowner would himself or herself 16 have -- 17 JUSTICE SCALIA: What of a small landowner? 18 JUSTICE KENNEDY: No, no. I'm asking 19 whether you have some special standing -- 20 MR. MILKEY: Yes -- 21 JUSTICE KENNEDY: -- as a State and, if so, 22 what's the authority for that? 23 MR. MILKEY: Your Honor, first of all, I do 24 think we have special standing. For example, here it's 25 uncontested that greenhouse gases are going to make 14 Alderson Reporting Company Official - Subject to Final Review 1 ozone problems worse, which makes it harder for us to 2 comply with our existing Clean Air Act responsibilities. 3 And the -- in the West Virginia case, which 4 is a D.C. Circuit case, the Court found that that itself 5 provided an independent source of standing. In terms of 6 Supreme Court cases, the -- it's been -- for 200 years, 7 this Court has recognized loss of state sovereign 8 property as a traditional -- 9 JUSTICE KENNEDY: Well, I don't know. 1907 10 was Georgia versus Tennessee Copper, and that was 11 pre-Massachusetts versus Mellon. That seems to me your 12 best case. 13 What about a small landowner? I asked the 14 question about a big landowner. Suppose you have a 15 small landowner and he owned a lot? 16 MR. MILKEY: Your Honor, I think if someone 17 is losing property because of this problem, then that 18 person would have standing, but we're nowhere near a de 19 minimis threshold here. We have shown we own property, 20 200 miles of coastline which we're losing, and we think 21 the standing is straightforward. 22 JUSTICE SCALIA: No, I'm not sure -- I think 23 our opinions have even said it, but certainly 24 commentators have often said it, that really the far 25 margin of our standing cases has been, you know, the 15 Alderson Reporting Company Official - Subject to Final Review 1 famous scrap case, in which the allegation was that the 2 added pollution from municipal incineration of municipal 3 waste which would -- which couldn't be transported by 4 rail for burial because the ICC rates were too high, 5 that added pollution interfered with the students' -- 6 they were Georgetown Law students -- their hiking in the 7 George Washington Forest along the Blue Ridge. 8 That seems to me a much more immediate kind 9 of damage; yet that's been referred to as really the far 10 margin of our standing cases. You're talking not about 11 their being affected by ambient air but being affected 12 by a stratospheric effect which then has another 13 consequence that you allege. 14 MR. MILKEY: Your Honor, once these are 15 emitted the laws of physics take over, so our harm is 16 imminent in the sense that lighting a fuse on a bomb is 17 imminent harm. It may take -- 18 JUSTICE GINSBURG: Mr. Milkey, does it make 19 a difference that you're not representing a group of law 20 students, but a number of States who are claiming that 21 they are disarmed from regulating and that the 22 regulatory responsibility has been given to the Federal 23 Government and the Federal Government isn't exercising 24 it? I thought you had a discrete claim based on the 25 sovereignty of States and their inability to regulate 16 Alderson Reporting Company Official - Subject to Final Review 1 dependent on the law Congress passed that gives that 2 authority to the EPA. I thought that was -- 3 MR. MILKEY: Your Honor, you are correct 4 that we are saying that provides us also an independent 5 source of our standing. 6 JUSTICE SCALIA: I don't understand 7 that. You have standing whenever a Federal law preempts 8 State action? You can complain about the implementation 9 of that law because it has preempted your State action? 10 Is that the basis of standing you're alleging? 11 MR. MILKEY: In short, Your Honor -- 12 JUSTICE SCALIA: Do you know any case that 13 has ever held that? 14 MR. MILKEY: Your Honor, I would cite you to 15 the amicus brief of the State of Arizona et al., which 16 cites several cases, albeit not in this Court, that 17 stand for that principle. 18 Your Honor, if I may turn to the merits 19 quickly, section 202(a)(1) provides EPA jurisdiction 20 over any air pollutant that motor vehicles emit. It's 21 not restricted to certain types of air pollutants or to 22 air pollutants that cause certain kinds of harm. And 23 not only does the act define air pollutant with 24 comprehensive breadth, but we know these four substances 25 are air pollutants from other evidence. 17 Alderson Reporting Company Official - Subject to Final Review 1 For example, Congress itself expressly 2 referred to carbon dioxide as an air pollutant in 3 section 103(g). And since by definition all air 4 pollutants are air pollution agents, we know that 5 Congress understood carbon dioxide to be an agent of air 6 pollution. And if air pollution -- 7 CHIEF JUSTICE ROBERTS: Moving from your 8 authority argument to the exercise of authority, the 9 clause 202(a)(1) requires EPA to prescribe standards 10 which in their judgment cause or contribute to air 11 pollution reasonably anticipated to endanger public 12 health. And they say they haven't made that judgment 13 yet, so they're not in violation of that statutory 14 command. 15 MR. MILKEY: That is correct, Your Honor; 16 but they have said that they have put off making a 17 judgment based on impermissible grounds. While EPA's 18 explanation is difficult even to follow, one overarching 19 point shines through and that is the agency does not 20 agree with taking a regulatory approach regardless of 21 how it might otherwise come out. 22 CHIEF JUSTICE ROBERTS: Let's say the first 23 day this law is passed, there are a lot of air 24 pollutants that come out of motor vehicles. I mean, is 25 EPA immediately in violation of this statute if they 18 Alderson Reporting Company Official - Subject to Final Review 1 don't issue emissions regulations for every one those 2 air pollutants on day one? 3 MR. MILKEY: No, Your Honor. EPA has a lot 4 of room to move based both on the endangerment standard 5 itself and on background principles of administrative 6 law. 7 CHIEF JUSTICE ROBERTS: And presumably the 8 principle that they want to deal with what they regard 9 as the more serious threats sooner. They want to deal 10 with lead first and then they want to deal with other 11 stuff. I mean, what is the -- when did they -- I 12 guess -- move into an abuse of discretion in not 13 exercising a judgment with respect to a particular 14 pollutant? 15 MR. MILKEY: The answer to that, Your Honor, 16 is that when they do not rely on any of those grounds, 17 they do not rely on lack of information, they did not 18 rely on background principles of administrative law. 19 What though said here is -- and -- that they did not, in 20 fact, contest the seriousness of the problem. But note, 21 in two back to back sentences on page A-82 of the third 22 petition they say: We must address the, issue but we 23 disagree with the regulatory approach. 24 The very section in which they explained why 25 they weren't going to regulate is entitled "Different 19 Alderson Reporting Company Official - Subject to Final Review 1 Policy Approach." Rejecting mandatory motor vehicle 2 regulation as a bad idea is simply not a policy choice 3 that Congress left to EPA. 4 JUSTICE GINSBURG: But if you are right and 5 then it went back and the EPA then said, well, an 6 obvious reason also is constraint on our own resources, 7 we have the authority to say what comes first, Congress 8 -- we couldn't possibly do everything that Congress has 9 authorized us to do; so it's our decision, even though 10 we have the authority to do this, we think that we 11 should spend our resources on other things. 12 Suppose they said that? You said they 13 didn't say it this time around, but how far will you get 14 if all that's going to happen is it goes back and then 15 EPA says our resources are constrained and we're not 16 going to spend the money? 17 MR. MILKEY: Your Honor, while background 18 administrative law principles provide EPA at least some 19 room to move, we think it's important that EPA say that. 20 If they -- it's a very different opinion if they say, we 21 are not going to regular here because we just don't want 22 to spend the resources on this problem and we want to 23 look elsewhere. 24 If they want to say that, they can say that 25 and then, if at all, there'd be a narrow arbitrary and 20 Alderson Reporting Company Official - Subject to Final Review 1 capricious challenge on that. But the point is here 2 they relied on the impermissible consideration that they 3 simply disagreed with the policy behind the statute. 4 CHIEF JUSTICE ROBERTS: That's not all they 5 said. I'm looking at A-85 and they said establishing 6 emissions now would require EPA to make scientific and 7 technical judgments without the benefit of studies that 8 are being developed to reduce the uncertainty in the 9 area. That's different than saying they disagree with 10 the regulatory approach. 11 MR. MILKEY: It is and it isn't, Your Honor, 12 because that statement will alleges be true. There will 13 always be scientific uncertainty. Agencies will always 14 have an understandable interest in seeing more 15 information. They never -- 16 CHIEF JUSTICE ROBERTS: There's a difference 17 between the scientific status of the harm from lead 18 emissions from vehicles that -- when you have lead in 19 the gasoline, to the status, the status of scientific 20 knowledge with respect to the impact on global warming 21 today? Those are two very different levels of 22 uncertainty. 23 MR. MILKEY: Your Honor, when EPA regulated 24 lead back in the ethyl days, as the Court court itself 25 took note, there were huge amounts of uncertainty at 21 Alderson Reporting Company Official - Subject to Final Review 1 that time. And EPA has a lot of discretion in 2 evaluating that, that uncertainty. 3 And if the EPA determined that the level of 4 uncertainty was such that it was not reasonable to 5 anticipate endangerment, that is perfectly appropriate. 6 It would also be appropriate if the agency determined 7 that there was so much uncertainty that they couldn't 8 even form a judgment on that. That would be applying 9 the endangerment statute at the same time it put off. 10 But the point is they did not say any of that. They 11 instead relied on impermissible grounds. 12 JUSTICE SCALIA: Mr. Milkey, I had -- my 13 problem is precisely on the impermissible grounds. To 14 be sure, carbon dioxide is a pollutant, and it can be an 15 air pollutant. If we fill this room with carbon 16 dioxide, it could be an air pollutant that endangers 17 health. But I always thought an air pollutant was 18 something different from a stratospheric pollutant, and 19 your claim here is not that the pollution of what we 20 normally call "air" is endangering health. That isn't, 21 that isn't -- your assertion is that after the pollutant 22 leaves the air and goes up into the stratosphere it is 23 contributing to global warming. 24 MR. MILKEY: Respectfully, Your Honor, it is 25 not the stratosphere. It's the troposphere. 22 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE SCALIA: Troposphere, whatever. I 2 told you before I'm not a scientist. 3 (Laughter.) 4 JUSTICE SCALIA: That's why I don't want to 5 have to deal with global warming, to tell you the truth. 6 MR. MILKEY: Under the express words of the 7 statute -- and this is 302(g) -- for something to be an 8 air pollutant it has to be emitted into the ambient air 9 or otherwise entered there. 10 JUSTICE SCALIA: Yes, and I agree with that. 11 It is when it comes out an air pollutant. But is it an 12 air pollutant that endangers health? I think it has to 13 endanger health by reason of polluting the air, and this 14 does not endanger health by reason of polluting the air 15 at all. 16 MR. MILKEY: Your Honor, respectfully, I 17 disagree, and there is nothing in the act that actually 18 requires the harm to occur in the ambient air. In fact, 19 some of the harm here does occur there. 20 JUSTICE SCALIA: Well, it talks about air 21 pollution all the time. That's what the, that's what 22 the thing is about, air pollution. It's not about 23 global warming and it's not about the troposphere. 24 MR. MILKEY: Your Honor, we are not saying, 25 first of all that global warming is air pollution, any 23 Alderson Reporting Company Official - Subject to Final Review 1 more than we're saying that asthma is air pollution. 2 They're both effects. I would point you to the example 3 of acid rain, where the pollutant there, sulfur dioxide, 4 the problem is it causes its harm after it leaves the 5 air, after it gets washed out. Air pollutants do not 6 need to cause harm in the ambient air. 7 Your Honor, I would add that our 8 interpretation satisfies common sense because, while EPA 9 has plenary authority over substances that motor 10 vehicles emit, those substances are regulated only if 11 EPA determines that they cause endangerment. By 12 defining the term "air pollutant" comprehensively, 13 Congress has not prejudged what may cause endangerment, 14 but it has allowed other pollutants to be regulated as 15 their harms become appreciated. It is EPA's 16 interpretation that fails the common sense test. They 17 have suggested that the term "air pollutant agent" 18 creates an independent test so important that it may 19 prevent some harmful compounds from being regulated 20 without providing any hint of what the term means or how 21 it applies in this case. And they cannot explain any 22 number of anomalies such as the fact that methane is 23 already a regulated air pollutant, yet they claim they 24 can't look at its climate effects. 25 Your Honor, if there are no more questions 24 Alderson Reporting Company Official - Subject to Final Review 1 I'd like to reserve my time. 2 CHIEF JUSTICE ROBERTS: Thank you, 3 Mr. Milkey. 4 Mr. Garre. 5 ORAL ARGUMENT OF GREGORY G. GARRE, 6 ON BEHALF OF RESPONDENTS 7 MR. GARRE: Thank you. Mr. Chief Justice, 8 and may it please the Court. 9 After carefully considering the issue the 10 nation's expert agency in environmental matters 11 concluded that Congress has not authorized it to embark 12 on the regulation of greenhouse gas emissions to address 13 global climate change. And that even if it has, now is 14 not the time to exercise such authority, in light of the 15 substantial scientific uncertainty surrounding global 16 climate change and the ongoing studies designed to 17 address those uncertainties. Plaintiffs have provide no 18 reason to override that quintessential administrative 19 judgment. 20 JUSTICE GINSBURG: Mr. Garre, doesn't the 21 EPA's decision on the first, "we don't have any 22 authority," doesn't that infect its subsequent decision, 23 "well, even if we did, we wouldn't exercise it." But 24 they've already decided they don't have authority. 25 MR. GARRE: Your Honor, I don't think that 25 Alderson Reporting Company Official - Subject to Final Review 1 it does. In the sense, I think EPA made clear in its 2 decisional document that it considered as an alternative 3 matter, that if it, even assuming it did have the 4 authority, that it wouldn't be appropriate to exercise 5 it at this time. 6 And importantly, too, I mean, just to be 7 clear on this, EPA has never made an endangerment 8 finding with respect to global climate change. That was 9 true in 1998 and 1999 when the agency had a different 10 position on authority to regulate. Even then the 11 agency's position was clear. Even assuming we have the 12 authority, now is not the time to exercise it. So I 13 don't think -- 14 JUSTICE GINSBURG: -- I take it that on that 15 question, is there authority, the EPA has come out one 16 way, but at least it is debatable because as you just 17 said, the predecessors of the current people said we do 18 have the authority. 19 MR. GARRE: Well, to that degree, Your 20 Honor, this Court has made clear, for example, in the 21 Brand X case that even where agencies change positions, 22 where they've provided reasonable grounds for a new 23 interpretation, that interpretation is entitled to 24 Chevron deference. We think that that is true in this 25 case. 26 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE BREYER: On this particular issue, 2 the opinion as I read it, of the EPA, consists of 32 3 pages. Twenty of those pages, 22 in fact, deal with 4 whether they have statutory authority. And of the 10 5 that deal with the issue we're talking about now, five 6 of them give as their reason that they think that the 7 President has a different policy. Of the remaining 8 five, two more consider international aspects of the 9 problem and how you have to get other countries to 10 cooperate; and then the conclusion of that part says in 11 light of these considerations, we decide not to exercise 12 our power. 13 Now their claim with respect to that, is 14 that at least three of the four considerations are not 15 proper things for the agency to take into account: 16 namely whether the President wants to do something 17 different, whether we're running foreign policy 18 properly, whether cooperation with other countries are 19 relevant to this particular issue. 20 So what they've asked us to do is send it 21 back so they can get the right reasons. Now -- if they 22 want not to do it. What's your response to that? 23 MR. GARRE: Justice Breyer, I don't think 24 that it depends on how many pages that the agency 25 devoted to the -- 27 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE BREYER: The reason it depended on 2 that is whether or not these other, improper 3 considerations might have influenced the ultimate 4 decision not to go ahead. 5 MR. GARRE: I think it depends on the 6 reasons that the agency gave. And one of the reasons 7 that the agency gave was the substantial scientific 8 uncertainty surrounding the issue of global climate 9 change. Petitioners acknowledge that that was an 10 appropriate consideration for the agency. So even if 11 you think the other considerations were inappropriate, 12 and we certainly do not, but even if you think they are, 13 the agency gave an appropriate reason. And that reasons 14 -- 15 JUSTICE BREYER: When I write an opinion -- 16 when I write an opinion, sometimes I write the words: 17 "We decide this matter in light of the following three 18 factors taken together." And I guess a lawyer who said, 19 "one of those factors alone the Court has held justified 20 the result all by itself" -- in saying the Court has 21 held that, I guess that wouldn't be so. That would be a 22 bad lawyer, wouldn't it? 23 MR. GARRE: But Your Honor -- 24 JUSTICE BREYER: If they write that all of 25 these considerations justify our result, again, one of 28 Alderson Reporting Company Official - Subject to Final Review 1 them by themselves, it sounds, they think would not have 2 been sufficient. 3 MR. GARRE: I -- I don't think that that is 4 a fair reading of the EPA decisional document, Your 5 Honor. Certainly, the agency didn't go out of its way 6 to say, "and reading these considerations together and 7 not any of them individually." And with respect to the 8 scientific uncertainty, Your Honor, you also have to 9 take into account that the EPA had before it and pointed 10 to the report of the National Research Council on global 11 climate change. 12 JUSTICE STEVENS: I find it interesting that 13 the scientists whose worked on that report said there 14 were a good many omissions that would have indicated 15 that there wasn't nearly the uncertainty that the agency 16 described. 17 MR. GARRE: Your Honor, if you are referring 18 to the amicus brief, Your Honor, there are -- assuming 19 there are amicus briefs on the other side. The Ballunas 20 amicus brief -- I think it is fair for the Court to look 21 at, to look at the document that the agency had before 22 it. That -- that document produced by the National 23 Research -- Research Council, that's the research arm of 24 the National Academy of Sciences. And it's one of the 25 gold standards of research. 29 Alderson Reporting Company Official - Subject to Final Review 1 JUSTICE STEVENS: But in their selective 2 quotations, they left out parts that indicated there was 3 far less uncertainty than the agency purported to find. 4 MR. GARRE: Well, Your Honor, I think one 5 thing that we ought to be able to agree on is there is 6 that there is uncertainty surrounding the phenomenon of 7 global climate change. I think the debate is on which 8 areas are more uncertain than the others. But certainly 9 I think the agency was entitled to conclude, 10 particularly if you take into account the deference this 11 Court should give to that kind of determination, that 12 the scientific uncertainty surrounding the issue of 13 global climate change, surrounding issues of the extent 14 of natural variability in climate, surrounding the 15 issues of impact of climate feedbacks like ocean 16 circulation, and low cloud cover, are permissible 17 considerations for the agency to take into -- - 18 JUSTICE STEVENS: Is there uncertainty on 19 the basic proposition that these greenhouse gases 20 contribute to global warming. 21 MR. GARRE: Your Honor, the report says that 22 it is likely that there is a -- a connection, but that 23 it cannot unequivocally be established. I think that -- 24 if I could use that to go back to the standing question, 25 Your Honor, which is the fundamental question of whether 30 Alderson Reporting Company Official - Subject to Final Review 1 they've showed not just a connection between greenhouse 2 gas emissions in toto and the phenomenon of global 3 climate change, but the particular class of greenhouse 4 gas emissions at issue in this case. Six percent of 5 global greenhouse gas emissions, at most. That assumes 6 you put all U.S. vehicles off the road or that they are 7 all zero emission cars. So you're talking about 8 emissions -- 9 CHIEF JUSTICE ROBERTS: -- it is not a 10 mathematical question, right? I mean, you would -- it's 11 that you would -- what is the number? What's enough? 12 10 percent? 15 percent? Presumably, there's more to it 13 than the percentage of emissions attributable to be this 14 particular -- 15 MR. GARRE: I think that's true, Your Honor. 16 But what petitioners here to show, they bear the burden 17 in order to establish standing under this case, is that 18 regulation of the class of greenhouse gases at issue in 19 this case will make a difference to them. 20 JUSTICE BREYER: Suppose it is not 21 greenhouse gas. Suppose it was Agent Orange. Suppose 22 there a car is coming down the street and it sprays out 23 Agent Orange. And I come into the Court and I say, you 24 know, I think that Agent Orange is going to kill me with 25 cancer. And the reply is, well, we have some scientists 31 Alderson Reporting Company Official - Subject to Final Review 1 here who say your chance of dying of cancer from Agent 2 Orange is only 1 in 30. Maybe 1 in 50. Maybe 1 in a 3 thousand. Maybe 1 in 10,000. And therefore, you have 4 no standing to require the EPA to regulate this 5 pollutant, Agent Orange, which is in a green cloud all 6 over the city. 7 Now, would you say that the person who's 8 made that claim has no standing? 9 MR. GARRE: Your Honor, I think that that is 10 a fundamentally different case, for the simple reason 11 that global climate change is a global phenomenon. I 12 mean one -- 13 JUSTICE BREYER: I was only addressing, 14 using that to -- to address your problem that the 15 chances are too small that, in fact, any one individual 16 will be affected by the 7 percent or 6 percent of the 17 material that comes out of the truck -- the CO2. 18 MR. GARRE: The -- the individual in that 19 case, Your Honor, like the plaintiffs here, would have 20 to show specific facts demonstrating injury, 21 redressibility and traceability. Now in this case -- 22 JUSTICE KENNEDY: Your problem, I think, you 23 take the position, the proposition that the greater the 24 harm the greater the risk, the smaller the probability 25 has to be before it is reasonable to act, and necessary 32 Alderson Reporting Company Official - Subject to Final Review 1 to act. 2 MR. GARRE: Your Honor, this Court's 3 standing cases make clear that you have to show that 4 granting the relief requested is likely to redress the 5 alleged harms. And again, looking at the -- 6 JUSTICE SOUTER: They are saying it is 7 likely to do so, even though we cannot give you a point 8 for point percentage correlation between reduction of 9 gas and coastline loss. You're saying, it seems to me, 10 that they have somehow got to pinpoint this 11 mathematically -- 12 MR. GARRE: I don't -- we're not saying 13 that. 14 JUSTICE SOUTER: -- before, before there is 15 redressibility. 16 MR. GARRE: We're not saying that, Your 17 Honor. We're saying that they have, they certainly have 18 to do more than they have done here. And they're 19 granted their standing -- 20 JUSTICE SOUTER: Tell me what it is that 21 they need, be more specific about what they need to do. 22 MR. GARRE: Well, I will be more specific. 23 And if I could also just point to what they grounded 24 their case on here. They grounded their case on here, 25 in the declarations, on the notion if the United States 33 Alderson Reporting Company Official - Subject to Final Review 1 regulates greenhouse gas emissions of vehicles, then 2 other countries will follow suit with respect to the 3 emissions of vehicles and other greenhouse gas 4 emissions. That's clear from the McCracken declaration 5 on page 239, paragraph 32 of the JA, as well as the 6 Walsh declaration. 7 JUSTICE SCALIA: I think it can be argued 8 that the Assistant Attorney General hasn't argued that 9 here. 10 MR. GARRE: Well -- 11 JUSTICE SCALIA: He has said that 6 percent 12 is enough. 13 MR. GARRE: That, that's true, Your Honor, 14 but I still think you have to look at the basis that 15 they've relied upon on standing. And they haven't shown 16 specific facts which should provide any comfort to this 17 Court that regulation of less than 6 percent or fewer 18 greenhouse emissions worldwide will have any effect on 19 their alleged injuries. 20 JUSTICE SOUTER: Why is there -- why is 21 there reason to assume that it will have no effect? 22 MR. GARRE: Well -- 23 JUSTICE SOUTER: That seems to be the 24 assumption you're making. You are saying unless they 25 can pinpoint the correlation between reduction of gas 34 Alderson Reporting Company Official - Subject to Final Review 1 and effect, let's say in coastline loss, they have not 2 shown either causation or a sufficient likelihood of 3 redressibility. 4 MR. GARRE: Your Honor -- 5 JUSTICE SOUTER: But why do they have to 6 show a precise correlation as opposed simply to 7 establishing what I think is not really contested, that 8 there is a correlation between greenhouse gases and the 9 kind of loss that they're talking about; and it is 10 reasonable to suppose that some reduction in the gases 11 will result in some reduction in future loss. 12 Why is that insufficient? 13 MR. GARRE: Justice Souter, one fundamental 14 reason is that we don't know what the rest of the world 15 is going to do, whether or not -- 16 JUSTICE SOUTER: Let's assume the rest -- 17 let's assume that the rest of the world does nothing. I 18 don't think that's a very reasonable assumption, but 19 let's make that assumption. So that the only thing 20 we're talking is the 6 percent. If the 6 percent can be 21 reduced -- I think the suggestion was over a reasonable 22 period of time, by two and a half percent of the 6, 23 there is, I suppose, reason to expect that there will 24 be, maybe not two and a half percent less coastline 25 lost, but some degree of less coastline lost because 35 Alderson Reporting Company Official - Subject to Final Review 1 there is a correlation between the gas and the loss of 2 the coastline. Why is that an unreasonable assumption 3 to make in order to show causation and redressibility, 4 bearing in mind that redressibility is a question of 5 more or less, not a question of either/or. 6 They don't have to show that it will stop 7 global warming. Their point is that will reduce the 8 degree of global warming and likely reduce the degree of 9 loss, if it is only by two and a half percent. What's 10 wrong with that? 11 MR. GARRE: Justice Souter, their burden is 12 to show that if the Court grants their requested relief 13 it will redress their injuries. I'm not aware -- 14 JUSTICE SOUTER: Not redress their injury in 15 the sense that it will prevent any global warming or 16 stop global warming and stop coastal erosion; their 17 argument is a different one. It will reduce the degree 18 of global warming and reduce the degree of coastal loss. 19 MR. GARRE: I think -- 20 JUSTICE SOUTER: That's their argument. Not 21 all or nothing. But a part. That's what they're trying 22 to show. 23 MR. GARRE: And that's fine, Justice Souter, 24 I grant you that. But they still have to show that 25 there is reason that it is likely to believe, that the 36 Alderson Reporting Company Official - Subject to Final Review 1 reduction in that tiny fraction of United States 2 emissions, putting aside the 99 percent or the 95 3 percent in the rest of the world and what they do, and 4 the evidence that shows that greenhouse gas emissions in 5 those countries are increasing, they have to show the 6 regulation of that tiny fraction would have an affect on 7 their alleged injuries, not to completely redress them, 8 Your Honor. We don't say that -- 9 JUSTICE SOUTER: Don't they have to show 10 that it is reasonable to suppose it will have an effect? 11 MR. GARRE: They have to show that it is 12 likely, Your Honor. And they haven't even tried to make 13 that showing. The one thing that they've -- 14 JUSTICE SOUTER: Why is that showing -- and 15 I agree with, by the way, with the Chief's suggestion a 16 moment ago, life is not, or physics are not so simple as 17 to assume that there's going to be a be a direct two and 18 a half percent reduction of coastline for a two and a 19 half percent reduction from the 6 percent. 20 But isn't it intuitively reasonable to 21 suppose that with some reduction of the greenhouse 22 gases, there will be some reduction of the ensuing 23 damage or the ensuing climate change which causes the 24 damage? Isn't that fair? 25 MR. GARRE: I don't think that it is fair, 37 Alderson Reporting Company Official - Subject to Final Review 1 Your Honor. I don't want to pretend to be an expert on 2 global climate change. But the one thing I can say is 3 from the materials I looked at is that this an 4 extraordinarily complex area of science. I'm not aware 5 of any studies available that would suggest that the 6 regulation of that minuscule fraction of greenhouse gas 7 emissions would have any effect whatsoever on the 8 global -- - 9 JUSTICE SOUTER: But do you have any -- 10 JUSTICE BREYER: Suppose others cooperate? 11 Suppose, for example, they regulate this and before you 12 know it, they start to sequester carbon with the power 13 plants, and before you know it, they decide ethanol 14 might be a good idea, and before you know it, they 15 decide any one of 15 things, each of which has an 16 impact, and lo and behold, Cape Cod is saved. Now why 17 is it unreasonable? Why is it unreasonable to go to an 18 agency and say now you do your part, which is 6 percent, 19 and now we're going to go to a different agency like 20 NHTSA and we're going to ask them too, and we're going 21 to go to your electricity regulation program, and coal. 22 And there are like not a million things that have to be 23 done, maybe there are only seven. But by the time we 24 get those seven things done, we'll make a big 25 difference. Now what is it in the law that says that 38 Alderson Reporting Company Official - Subject to Final Review 1 somehow a person cannot go to an agency and say we want 2 you to do your part? Would you be up here saying the 3 same thing if we're trying to regulate child 4 pornography, and it turns out that anyone with a 5 computer can get pornography elsewhere? I don't think 6 so. 7 MR. GARRE: Your Honor, what I would point 8 you to is your decision in Lujan versus Defenders of 9 Wildlife, Justice Kennedy's opinion in ASARCO versus 10 Kadish, where the Court made clear that you cannot 11 establish standing based on predictions of the actions 12 of independent actors not before it. That's true about 13 other agencies that aren't here today. That's true 14 about other countries whom this Court does not have 15 jurisdiction over. 16 JUSTICE BREYER: So they couldn't have gone 17 in and asked for ozone regulations, because that 18 requires other countries? Or what about dumping heavy 19 metals in the sea, and as the sea gets polluted because 20 of what other countries do, but EPA tried to regulate 21 that. Acid rain they tried to regulate. You're 22 saying there is no standing to ask for any of that. 23 MR. GARRE: Well, first of all, Congress has 24 specifically addressed two of the areas that you 25 mentioned, Your Honor, and we're not saying that 39 Alderson Reporting Company Official - Subject to Final Review 1 categorically -- 2 CHIEF JUSTICE ROBERTS: Just because there's 3 no standing to challenge an agency's decision doesn't 4 mean the agency can't regulate that particular area, 5 right? 6 MR. GARRE: That's exactly right, Your 7 Honor. That's exactly right. 8 JUSTICE BREYER: But you are saying if 9 Congress passes a statute and they put the words CO2 10 right in this statute under ambient air, and they say 11 anybody can go and sue if the EPA doesn't do it, you're 12 saying Congress lacks the constitutional authority to do 13 that, because it's Article III we're talking about? 14 MR. GARRE: Well, Your Honor, we're saying 15 two things. First, every plaintiff has the obligation 16 to establish that he has Article III standing under this 17 Constitution. And secondly, there are members of this 18 Court, for example, Justice Kennedy in his concurring 19 opinion in Defenders of Wildlife, who did suggest that 20 perhaps if Congress specifically addresses an issue, 21 that could inform the standing analysis. For example -- 22 CHIEF JUSTICE ROBERTS: They can't 23 compromise the requirements of Article III. 24 MR. GARRE: It cannot, Your Honor. Congress 25 could make findings with respect to causation or other 40 Alderson Reporting Company Official - Subject to Final Review 1 issues that this Court would have to give deference to 2 and seriously consider, but you're right. It would not 3 override the requirements of Article III. And there may 4 be some global phenomenon that create more difficult 5 challenges to establish standing but -- 6 JUSTICE STEVENS: As I understand the 7 government's position, you're not merely questioning 8 standing but you also take the position you do not have 9 the authority to do what the plaintiff asks you to do; 10 is that correct? 11 MR. GARRE: That's true, Your Honor, moving 12 to the merits, that's true. And with respect to that, 13 the agency engaged in the same type of analysis that 14 this Court laid out in the Brown and Williamson case. 15 JUSTICE STEVENS: May I ask you on that 16 question, if we turn to the statute, to Section 201, 17 there's reference to "shall regulate" if in the judgment 18 of the administrator there is a for real danger and so 19 forth. In your view, is there a duty to make a 20 judgment? 21 MR. GARRE: Your Honor, our view is that 22 agencies have inherent discretion to determine when to 23 make that judgment. 24 JUSTICE STEVENS: Could they have a 25 discretion never to make the judgment? 41 Alderson Reporting Company Official - Subject to Final Review 1 MR. GARRE: I think that gets to the 2 question of whether there is, what judicial review is 3 available. We have assumed in this case that there's 4 some measure of judicial review. So I think at some 5 point you got to the point where the agency either has 6 provided no reasons whatsoever, or there is no sound 7 basis for the agency not to take that step. Then 8 assuming that there is a role for the courts here, a 9 court could come in and say that that was inappropriate. 10 JUSTICE STEVENS: But as I read your brief, 11 you didn't really confront the question, s I understand 12 it, of whether or not there was a duty to make a 13 judgment at all. And I'm interested in what your 14 position on that is. 15 MR. GARRE: Well, again, I think it goes to 16 the question -- we think the statute does not put a 17 deadline on when the agency has to have, and that 18 therefore -- 19 JUSTICE STEVENS: To me, just reading the 20 text of the statute is a little ambiguous. I'm not 21 entirely clear, but it seems to me that just reading 22 that statute, I got the impression that Congress thought 23 that the administrator had a duty to make a judgment 24 when there was enough evidence out there that people 25 were concerned about it and so forth, that there would 42 Alderson Reporting Company Official - Subject to Final Review 1 be a duty there, but you think not? 2 MR. GARRE: That's not the agency's 3 interpretation. In fact in its decisional document 4 under the section no mandatory duty, the agency explains 5 why that's not its interpretation and we think that 6 that's a reasonable interpretation. Congress knows how 7 to constrain the exercise of discretion. We point in 8 footnotes 18 and 19 of our brief of many examples where 9 Congress has laid out deadlines or other constraints on 10 the exercise of discretion, and those aren't present in 11 Section 203. 12 JUSTICE STEVENS: But you would agree that 13 if they did make a judgment, then you would have 14 authority to regulate? 15 MR. GARRE: That's right. And then I think 16 it's a point the D.C. Circuit made in the Ethyl 17 Corporation case at footnote 37, that precisely because 18 the statute imposes a duty to act once that endangerment 19 finding is made, the agency has discretion to determine 20 when to make the endangerment finding. 21 JUSTICE KENNEDY: In Norton versus Utah 22 Wilderness Alliance, having to do with the regulation of 23 off-road vehicles, we indicated that one measure was 24 whether or not the agency has unreasonably delayed its 25 action. 43 Alderson Reporting Company Official - Subject to Final Review 1 MR. GARRE: That's a separate sort of 2 action, Your Honor. There are cases where people have 3 said that this is unreasonable delay. That's not the 4 claim that the petitioners in this case brought. 5 CHIEF JUSTICE ROBERTS: Let me understand 6 your answer to Justice Stevens' question. If EPA made 7 the judgment under the statute, you think they would 8 have had the authority? 9 MR. GARRE: Under the statute -- 10 CHIEF JUSTICE ROBERTS: I thought you had a 11 Brown and Williamson argument that EPA was precluded. 12 MR. GARRE: No, I was assuming -- in 13 answering Justice Stevens' questions, that we were down 14 in the exercise of discretion part. But you're right, 15 Your Honor, the threshold position of the agency on this 16 is that it lacks the authority to -- 17 JUSTICE SCALIA: Can I ask about that? I 18 found persuasive Solicitor General Garre's point that in 19 the acid rain context, it isn't air pollution that harms 20 health, but rather it is the effect of the pollutant 21 after it leaves the air and produces the acid rain. Is 22 there anything wrong with that response? It seems to 23 me -- 24 MR. GARRE: I think there is, Your Honor. 25 The way that the agency looked at this is to look at the 44 Alderson Reporting Company Official - Subject to Final Review 1 question of whether Congress intended it to regulate 2 greenhouse gas emissions to address global climate 3 change, and it looked to the factors that this Court 4 laid out in Brown and Williamson. The statute as a 5 whole is specific legislation addressing global climate 6 change, and it concluded that the agency had not 7 authorized it to embark on that regulatory -- 8 JUSTICE SCALIA: You concede that it's an 9 air pollutant that affects health? 10 MR. GARRE: No. The agency -- what the 11 agency found, Your Honor, was that because global 12 climate change is not air pollution within the meaning 13 of the statute -- which is to say that Congress did not 14 authorize it to regulate it as air pollution. 15 JUSTICE SCALIA: Then why isn't it air 16 pollution within the meaning of the statute, although 17 whatever it is that causes acid rain is? 18 MR. GARRE: I think, Your Honor, that the 19 key to the agency was that Congress did not give it 20 regulatory authority over this. And I think on the 21 question of whether or not greenhouse gas emissions 22 qualify -- 23 JUSTICE SCALIA: But you can't give me any 24 text in this statute itself. It isn't the phrase "air 25 pollution" or any other phrase? 45 Alderson Reporting Company Official - Subject to Final Review 1 MR. GARRE: The agency pointed to the term 2 "air pollution agent" in the statute, and concluded that 3 because global climate change was not air pollution that 4 Congress intended to address -- 5 JUSTICE SCALIA: And that gets us back to 6 acid rain. 7 MR. GARRE: And with respect to acid rain, 8 it's a good example insofar as Congress has enacted a 9 whole separate title of the Clean Air Act to address 10 acid rain. 11 The other thing I want to mention on the 12 interpretive question is, in the Brown and Williamson 13 case, this Court assumed at the outset of its analysis 14 that nicotine would be within the general terms of the 15 definition of drug in the Food, Drug and Cosmetic Act, 16 and that cigarettes would fall within the general term 17 of drug -- 18 JUSTICE SCALIA: So that's the position 19 you're taking, that it is within the general term? 20 MR. GARRE: I think it's largely the 21 position that the agency took, Your Honor, insofar as it 22 reasoned that, look, we've looked at everything. We 23 conclude that Congress doesn't intend us to regulate 24 global climate change as air pollution. And so 25 therefore, we're not going to say that greenhouse gases 46 Alderson Reporting Company Official - Subject to Final Review 1 are air pollution agents. 2 JUSTICE GINSBURG: Which is why there's a 3 significant difference between the agency saying that 4 for 60 years, and I think this Court stressed that in 5 its opinion, and Congress reacting to that, what the 6 agency's position was. And here where it's a newly 7 minted position, because the agency's position not too 8 long ago was that they did have the authority. 9 MR. GARRE: Well, Justice Ginsburg, it was 10 30 years before the agency reached the conclusion in 11 1998 that carbon dioxide was an air pollutant. And 12 again, even when it reached that conclusion, it made 13 clear that it didn't think that the agency would 14 exercise its authority to regulate it. 15 JUSTICE GINSBURG: That's a different 16 question. I'm just focusing on, did it have authority 17 to deal with this issue? 18 MR. GARRE: And I think -- I mean, I grant 19 you that there are differences between Brown and 20 Williamson and this case, but the fundamental conclusion 21 that the agency reached is the same. Which was, to 22 borrow the phrase from the Whitman case, Congress did 23 not intend to hide elephants in mouse holes. Here we 24 are talking about an issue of the magnitude of 25 regulating global climate change and greenhouse gas 47 Alderson Reporting Company Official - Subject to Final Review 1 emissions, which are fundamentally an important part of 2 the nation's economy. Nearly 85 percent of the economy 3 is a direct or indirect source of greenhouse gas 4 emissions. 5 And when we look at when Congress did 6 mention carbon dioxide in the statute, which is in the 7 1990 amendments, Section 103(g), that was the first time 8 that Congress mentioned CO2. And when it did that, it 9 went out of its way to say that it was giving 10 non-regulatory authority to the agency, and moreover, 11 that nothing in this section shall provide any basis for 12 any air pollution control requirements. That's a 13 strange thing for Congress to say if it believed that 14 the agency already had this far-reaching authority to 15 regulate greenhouse gas emissions. 16 There are other aspects of the statute that 17 we think lead to the same conclusion in Brown & 18 Williamson. There's a fundamental inconsistency, the 19 agency concluded, between attempting to regulate 20 greenhouse gas emissions under the national air ambient 21 quality system, and that inconsistency is similar to the 22 inconsistency that the Court pointed out in the Brown 23 and Williamson case. 24 JUSTICE BREYER: I'd like you to address 25 that. You said there was a lot of legislation in 48 Alderson Reporting Company Official - Subject to Final Review 1 Congress that would have been pretty inconsistent with 2 serious regulation by the FDA. And in this case, I 3 don't think Congress is opposing the notion. I don't 4 know anybody there who's in favor of global warming. 5 And it seems to me they haven't passed laws that is 6 actually, that would be significantly interfered with by 7 the EPA trying to do its best to deal with this problem. 8 Or am I wrong? 9 MR. GARRE: I think you're wrong in the 10 following respect, Your Honor. 11 JUSTICE BREYER: What articles would be -- 12 MR. GARRE: Congress has passed at least six 13 separate statutes to specifically address the issue of 14 global warming, and all of them share two common 15 features. One, we want you to research this issue and 16 learn more about it. And two, we want you to work on an 17 international framework for addressing global climate 18 change. The agency reasonably concluded that unilateral 19 U.S. regulation of greenhouse gases -- 20 JUSTICE BREYER: Is there anything in the 21 statute that prevents them from consulting with other 22 nations or prevents the government from doing that when 23 they determine how best to work out whatever standards 24 or other forms of regulation they want? 25 MR. GARRE: There's nothing in the Clean Air 49 Alderson Reporting Company Official - Subject to Final Review 1 Act, if that's the stature you're referring to, but I -- 2 JUSTICE SCALIA: I presume the problem that 3 they have in mind is that we have nothing to give in 4 international negotiations. If we have done everything 5 we can to reduce CO2, you know, what deal do we make 6 with foreign nations? What incentive do they have to go 7 along with us? 8 MR. GARRE: That's right, Your Honor. We've 9 got a unique collective action problem, and yet, the 10 reaction experience of the agency in dealing with the 11 issue of stratospheric ozone depletion rate had 12 precisely that situation, where the U.S. initially took 13 steps. The stratospheric ozone depletion worsened, and 14 it was only after international agreement was reached in 15 the Montreal Protocol that a global solution to the 16 problem was reached. 17 JUSTICE BREYER: Do you think they have a 18 good reason, yes or no? Because I'm not an expert in 19 foreign affairs. The EPA probably is more than I am. 20 But do you think that if they do rest their decision on 21 their analysis of foreign affairs, that that is a proper 22 basis for an agency like the EPA to refuse to regulate? 23 MR. GARRE: I think it's a proper basis 24 within its inherent discretion, Your Honor, for at least 25 two reasons. One, the agency is a part of the executive 50 Alderson Reporting Company Official - Subject to Final Review 1 branch and it had unique experience with the issue of 2 stratospheric ozone depletion. And two, Congress has 3 made clear, for example in the Global Climate Protection 4 Act of 1987, that the EPA has a role in at least 5 reporting to Congress on international cooperation and 6 efforts in that realm. 7 JUSTICE SOUTER: But Congress has not 8 directed, don't regulate domestically for purposes of 9 global warming. 10 MR. GARRE: That's true, Your Honor, but -- 11 JUSTICE SOUTER: The problem that I have 12 with your reference to this very -- these various pieces 13 of legislation that suggest that Congress has a 14 different modus operandi in mind is that Congress 15 certainly is aware that EPA has authority over 16 pollutants, and it has never interfered with it. 17 MR. GARRE: Well, Your Honor, again, I think 18 in looking at all the sources the agency looked to, the 19 conclusion is, that the agency responsibly and prudently 20 reached, is that Congress has not authorized it to 21 embark on this regulatory endeavor. And I think the 22 closest statute that comes to -- 23 JUSTICE SOUTER: But isn't that a 24 misstatement? Isn't the conclusion that they're trying 25 to draw that Congress doesn't want them to exercise the 51 Alderson Reporting Company Official - Subject to Final Review 1 authority they have for this purpose? And isn't that 2 something quite different? And doesn't that raise the 3 question whether that is a legitimate concern for them 4 under the statute that does give them the authority? 5 MR. GARRE: May I answer the question? No, 6 Your Honor. I think the agency's conclusion was 7 Congress had not authorized it to undertake the 8 regulation of greenhouse gas emissions to address global 9 climate change and that, even if it had, that authority 10 should not be exercised. 11 Thank you very much. 12 CHIEF JUSTICE ROBERTS: Thank you, 13 Mr. Garre. 14 Mr. Milkey, you have 3 minutes remaining. 15 REBUTTAL ARGUMENT OF JAMES R. MILKEY 16 ON BEHALF OF THE PETITIONERS 17 JUSTICE SCALIA: Mr. Milkey, do you want us 18 to send this case back to the EPA to ask them whether if 19 only the last two pages of their opinion were given as a 20 reason that would suffice? Would that make you happy? 21 MR. MILKEY: It would not make us happy, 22 Your Honor. 23 JUSTICE SCALIA: I didn't think so. 24 (Laughter.) 25 MR. MILKEY: Your Honor, if I can address 52 Alderson Reporting Company Official - Subject to Final Review 1 the global aspect of the problem, the fact that the 2 solution to the whole problem -- 3 JUSTICE BREYER: What is your answer to 4 Justice Scalia? Because I thought you said before that 5 you thought it was appropriate for us to send this case 6 back so that they could redetermine in light of proper 7 considerations whether they wanted to exercise their 8 authority. 9 MR. MILKEY: That is exactly -- 10 JUSTICE BREYER: Am I wrong about that? 11 MR. MILKEY: Your Honor, that is exactly 12 what we want. I understood Justice Scalia to be saying 13 -- 14 JUSTICE SCALIA: That's what I was asking, 15 yes. And you think it will go back to them and they 16 will say, oh my goodness, the scientific uncertainty is 17 not enough by itself? You really expect that to happen? 18 MR. MILKEY: Respectfully, Your Honor, I 19 think EPA will have a hard time saying that there is 20 insufficient -- I mean, too much scientific uncertainty. 21 The very sentence -- 22 JUSTICE SCALIA: They said it already. 23 MR. MILKEY: No, Your Honor. 24 JUSTICE SCALIA: The only question is 25 whether that alone is enough. 53 Alderson Reporting Company Official - Subject to Final Review 1 MR. MILKEY: Respectfully, Your Honor, they 2 did not say that. They did not anywhere say why the 3 existing uncertainty mattered. To the contrary, they 4 emphasized the need to act in the face of current 5 uncertainty, but never explained why that principle 6 applies to a nonregulatory approach but not to a 7 regulatory one. 8 CHIEF JUSTICE ROBERTS: What they said was 9 until more is understood about causes, extent and 10 significance of climate change and the potential options 11 for addressing it, we believe it's inappropriate to 12 regulate these emissions. 13 MR. MILKEY: Your Honor. 14 CHIEF JUSTICE ROBERTS: That strikes me as 15 saying they think there is too much uncertainty for them 16 to act. 17 MR. MILKEY: Your Honor, they did not say 18 there is too much uncertainty for them to form a 19 judgment, which is the key issue. They said they 20 preferred more certainty, but because of the nature of 21 the endangerment standard, which emphasizes the 22 important of regulating in the face of uncertainty, they 23 have to at least explain why the uncertainty matters. 24 And that is -- what they did here is particularly 25 troubling in the fact that they ignored all of the 54 Alderson Reporting Company Official - Subject to Final Review 1 indications pointing toward endangerment. They looked 2 at what we don't know without ever looking at what we do 3 know. 4 JUSTICE ALITO: If the EPA concludes that 5 regulating an air pollutant would endanger public health 6 and welfare, can it decline to regulate? 7 MR. MILKEY: Not under section 202, Your 8 Honor. 9 JUSTICE ALITO: It has to regulate even if 10 it concludes that regulation would make things worse? 11 MR. MILKEY: Would make things worse? 12 JUSTICE ALITO: Yes. 13 MR. MILKEY: I'm sorry, I didn't understand 14 that. 15 No. 16 MR. MILKEY: No, Your Honor. If they 17 thought there would be more endangerment that way they 18 would not have to regulate. 19 JUSTICE ALITO: Then why can't they -- what 20 is wrong with their view that for the United States to 21 proceed unilaterally would make things worse and 22 therefore they're going to decline to regular for that 23 reason? 24 MR. MILKEY: Your Honor, first of all, I 25 don't believe they actually said that, and there is 55 Alderson Reporting Company Official - Subject to Final Review 1 nothing in the statute that even hints that they can 2 take foreign policy considerations into account. To the 3 contrary, the statute is very specific in other sections 4 about when they're supposed to look at foreign emissions 5 -- 6 JUSTICE ALITO: Isn't the definition of 7 public welfare extremely broad? 8 MR. MILKEY: Your Honor, it is certainly 9 extremely broad, and it does include climate. 10 Thank you, Your Honor. 11 CHIEF JUSTICE ROBERTS: Thank you, counsel. 12 The case is submitted. 13 (Whereupon, at 11:02 a.m., the case in the 14 above-entitled matter was submitted.) 15 16 17 18 19 20 21 22 23 24 25 56 Alderson Reporting Company Official - Subject to Final Review Page 57 A able 11:24 30:5 above-entitled 1:12 56:14 abuse 19:12 Academy 29:24 account 7:3 27:15 29:9 30:10 56:2 accumulate 4:14 achieve 11:16 acid 24:3 39:21 44:19,21 45:17 46:6,7,10 acknowledge 28:9 acres 13:13 act 3:25 6:18 7:19 8:10 10:6 15:2 17:23 23:17 32:25 33:1 43:18 46:9,15 50:1 51:4 54:4,16 action 17:8,9 43:25 44:2 50:9 actions 39:11 activity 5:16 actors 39:12 add 9:11 10:4 24:7 added 16:2,5 address 19:22 25:12,17 32:14 45:2 46:4,9 48:24 49:13 52:8,25 addressed 39:24 addresses 40:20 addressing 32:13 45:5 49:17 54:11 administrative 3:14 19:5,18 20:18 25:18 administrator 41:18 42:23 adopt 9:17 affairs 50:19,21 affect 37:6 affidavit 13:12 affidavits 4:13 9:7,10,14 agencies 11:25 21:13 26:21 39:13 41:22 agency 1:7 3:5 18:19 22:6 25:10 26:9 27:15,24 28:6 28:7,10,13 29:5,15,21 30:3,9,17 38:18,19 39:1 40:4 41:13 42:5,7,17 43:4 43:19,24 44:15 44:25 45:6,10 45:11,19 46:1 46:21 47:3,10 47:13,21 48:10 48:14,19 49:18 50:10,22,25 51:18,19 agency's 26:11 40:3 43:2 47:6 47:7 52:6 agent 18:5 24:17 31:21,23,24 32:1,5 46:2 agents 18:4 47:1 ago 37:16 47:8 agree 7:5 14:15 18:20 23:10 30:5 37:15 43:12 Agreed 6:8 agreement 50:14 ahead 10:18,19 28:4 aimed 4:12 air 3:25 4:14 5:1 6:18 7:19 8:9 10:6 11:4 15:2 16:11 17:20,21 17:22,23,25 18:2,3,4,5,6,10 18:23 19:2 22:15,16,17,20 22:22 23:8,8 23:11,12,13,14 23:18,20,22,25 24:1,5,5,6,12 24:17,23 40:10 44:19,21 45:9 45:12,14,15,24 46:2,3,9,24 47:1,11 48:12 48:20 49:25 55:5 al 1:3,7 17:15 albeit 17:16 ALITO 10:18 11:10,15 55:4 55:9,12,19 56:6 allegation 7:23 13:18 16:1 allege 16:13 alleged 12:13 33:5 34:19 37:7 alleges 21:12 alleging 17:10 Alliance 43:22 allowed 24:14 allows 10:19 alternative 26:2 ambient 16:11 23:8,18 24:6 40:10 48:20 ambiguous 42:20 amendments 48:7 amicus 17:15 29:18,19,20 amount 11:3 amounts 5:1 21:25 analysis 40:21 41:13 46:13 50:21 analytically 14:2 anomalies 24:22 answer 19:15 44:6 52:5 53:3 answering 44:13 anticipate 22:5 anticipated 18:11 anybody 40:11 49:4 appeal 7:20 APPEARAN... 1:15 application 7:14 applies 24:21 54:6 apply 7:25 applying 4:1 22:8 appreciated 24:15 approach 3:23 8:2 18:20 19:23 20:1 21:10 54:6 appropriate 22:5,6 26:4 28:10,13 53:5 arbitrary 20:25 area 3:12 5:10 21:9 38:4 40:4 areas 4:17 30:8 39:24 argued 34:7,8 argument 1:13 2:2,5,8 3:3,6 9:2 10:1,3,9 18:8 25:5 36:17,20 44:11 52:15 arises 3:12 Arizona 17:15 arm 29:23 Article 40:13,16 40:23 41:3 articles 49:11 ASARCO 39:9 aside 37:2 asked 15:13 27:20 39:17 asking 4:4 14:18 53:14 asks 41:9 aspect 53:1 aspects 27:8 48:16 assertion 22:21 Assistant 1:16 34:8 assume 34:21 35:16,17 37:17 assumed 42:3 46:13 assumes 12:3,5 31:5 assuming 26:3 26:11 29:18 42:8 44:12 assumption 34:24 35:18,19 36:2 asthma 24:1 attempting 48:19 Attorney 1:16 34:8 attributable 5:16,19 31:13 authority 3:17 5:25 6:9 8:18 14:7,22 17:2 18:8,8 20:7,10 24:9 25:14,22 25:24 26:4,10 26:12,15,18 27:4 40:12 41:9 43:14 44:8,16 45:20 47:8,14,16 Alderson Reporting Company Official - Subject to Final Review Page 58 48:10,14 51:15 52:1,4,9 53:8 authorize 45:14 authorized 20:9 25:11 45:7 51:20 52:7 automobile 10:2 automobiles 5:19 available 38:5 42:3 aware 36:13 38:4 51:15 A-82 19:21 A-85 21:5 a.m 1:14 3:2 56:13 B back 19:21,21 20:5,14 21:24 27:21 30:24 46:5 52:18 53:6,15 background 19:5,18 20:17 bad 20:2 28:22 Ballunas 29:19 based 3:15 4:7 16:24 18:17 19:4 39:11 basic 6:18 30:19 basis 17:10 34:14 42:7 48:11 50:22,23 bear 31:16 bearing 36:4 behalf 1:17,20 2:4,7,10 3:7 25:6 52:16 behold 38:16 believe 8:16 9:21 13:4 14:3 36:25 54:11 55:25 believed 48:13 benefit 7:23 10:11 12:8 21:7 best 11:16 15:12 49:7,23 big 14:10 15:14 38:24 Blue 16:7 bomb 16:16 borrow 47:22 Boston 1:17 branch 51:1 Brand 26:21 breadth 17:24 Breyer 27:1,23 28:1,15,24 31:20 32:13 38:10 39:16 40:8 48:24 49:11,20 50:17 53:3,10 brief 14:9 17:15 29:18,20 42:10 43:8 briefs 29:19 broad 56:7,9 broader 7:23 8:4 brought 44:4 Brown 41:14 44:11 45:4 46:12 47:19 48:17,22 burden 31:16 36:11 burial 16:4 C C 1:18 2:1,6 3:1 call 22:20 cancer 31:25 32:1 capacity 14:6 Cape 38:16 capricious 21:1 car 8:1 31:22 carbon 5:18 6:7 6:10 7:1,9,15 11:13 12:25 18:2,5 22:14 22:15 38:12 47:11 48:6 carefully 25:9 cars 6:14 7:2,7,7 11:5 31:7 case 3:12 6:13 7:21 8:17,18 9:1,7 13:17 14:2,9,13 15:3 15:4,12 16:1 17:12 24:21 26:21,25 31:4 31:17,19 32:10 32:19,21 33:24 33:24 41:14 42:3 43:17 44:4 46:13 47:20,22 48:23 49:2 52:18 53:5 56:12,13 cases 10:8 15:6 15:25 16:10 17:16 33:3 44:2 cataclysm 5:4,6 categorically 40:1 causation 35:2 36:3 40:25 cause 13:6 17:22 18:10 24:6,11 24:13 caused 11:3 causes 24:4 37:23 45:17 54:9 causing 12:20 certain 17:21,22 certainly 15:23 28:12 29:5 30:8 33:17 51:15 56:8 certainty 54:20 challenge 5:24 8:5,8 10:10 21:1 40:3 challenged 7:24 9:7 challenges 41:5 challenging 8:14 chance 32:1 chances 32:15 change 4:5 9:13 9:16 25:13,16 26:8,21 28:9 29:11 30:7,13 31:3 32:11 37:23 38:2 45:3,6,12 46:3 46:24 47:25 49:18 52:9 54:10 changes 9:17 Chevron 26:24 Chief 3:3,8 7:22 8:11 9:14 10:1 10:7 12:3,12 13:16,23 14:1 14:8 18:7,22 19:7 21:4,16 25:2,7 31:9 40:2,22 44:5 44:10 52:12 54:8,14 56:11 Chief's 37:15 child 39:3 China 12:7 choice 20:2 cigarettes 46:16 Circuit 7:20 15:4 43:16 circulation 30:16 circumstances 11:17 cite 17:14 cites 17:16 citizen 13:24 city 32:6 claim 16:24 22:19 24:23 27:13 32:8 44:4 claimed 6:6 claiming 3:23 6:4 10:12 16:20 class 31:3,18 clause 18:9 Clean 3:25 6:18 7:19 10:6 15:2 46:9 49:25 clear 26:1,7,11 26:20 33:3 34:4 39:10 42:21 47:13 51:3 climate 4:5 9:13 24:24 25:13,16 26:8 28:8 29:11 30:7,13 30:14,15 31:3 32:11 37:23 38:2 45:2,5,12 46:3,24 47:25 49:17 51:3 52:9 54:10 56:9 closest 51:22 cloud 30:16 32:5 coal 8:2,3 38:21 coastal 36:16,18 coastline 10:16 12:13,17 13:2 13:9 14:11 15:20 33:9 35:1,24,25 36:2 37:18 Cod 38:16 collective 50:9 come 18:21,24 26:15 31:23 42:9 comes 20:7 23:11 32:17 51:22 comfort 34:16 coming 31:22 command 18:14 Alderson Reporting Company Official - Subject to Final Review Page 59 commentators 15:24 common 24:8,16 49:14 complain 17:8 completely 37:7 complex 38:4 comply 15:2 compounds 24:19 comprehensive 17:24 comprehensiv... 24:12 compromise 40:23 computer 39:5 concede 45:8 concern 52:3 concerned 42:25 conclude 9:12 30:9 46:23 concluded 25:11 45:6 46:2 48:19 49:18 concludes 55:4 55:10 conclusion 3:20 27:10 47:10,12 47:20 48:17 51:19,24 52:6 concurring 40:18 confront 42:11 Congress 17:1 18:1,5 20:3,7,8 24:13 25:11 39:23 40:9,12 40:20,24 42:22 43:6,9 45:1,13 45:19 46:4,8 46:23 47:5,22 48:5,8,13 49:1 49:3,12 51:2,5 51:7,13,14,20 51:25 52:7 conjectural 5:9 conjecture 5:14 9:19,19 connection 30:22 31:1 consensus 5:15 5:15 consequence 16:13 consider 3:22 27:8 41:2 consideration 21:2 28:10 considerations 4:8 27:11,14 28:3,11,25 29:6 30:17 53:7 56:2 considered 26:2 considering 25:9 consistent 10:8 consists 27:2 constant 12:4 constitute 3:15 6:1 Constitution 40:17 constitutional 40:12 constrain 43:7 constrained 20:15 constraint 20:6 constraints 43:9 consulting 49:21 contest 19:20 contested 35:7 context 44:19 contexts 10:4 continuously 5:7 contrary 9:11 54:3 56:3 contribute 18:10 30:20 contributing 22:23 contribution 10:6,11 11:11 12:6 contributors 10:2 control 48:12 cooperate 27:10 38:10 cooperation 27:18 51:5 Copper 15:10 Corporation 43:17 correct 17:3 18:15 41:10 correlation 33:8 34:25 35:6,8 36:1 Cosmetic 46:15 Council 29:10 29:23 counsel 56:11 countries 27:9 27:18 34:2 37:5 39:14,18 39:20 course 4:16 court 1:1,13 3:9 4:4 9:8 13:17 13:21 15:4,6,7 17:16 21:24,24 25:8 26:20 28:19,20 29:20 30:11 31:23 34:17 36:12 39:10,14 40:18 41:1,14 42:9 45:3 46:13 47:4 48:22 courts 42:8 Court's 33:2 cover 30:16 CO2 32:17 40:9 48:8 50:5 create 13:9 41:4 creates 24:18 cumulative 12:18 current 5:1 26:17 54:4 currently 7:2,7 7:19,20 D D 3:1 damage 16:9 37:23,24 danger 41:18 day 18:23 19:2 days 21:24 de 15:18 deadline 42:17 deadlines 43:9 deal 4:1 10:25 19:8,9,10 23:5 27:3,5 47:17 49:7 50:5 dealing 50:10 debatable 26:16 debate 30:7 decide 8:25 9:1 27:11 28:17 38:13,15 decided 25:24 decision 3:15 8:7,12 20:9 25:21,22 28:4 39:8 40:3 50:20 decisional 26:2 29:4 43:3 decisions 8:14 declaration 34:4 34:6 declarations 33:25 decline 55:6,22 declined 3:21 deductions 8:21 Defenders 39:8 40:19 deference 26:24 30:10 41:1 define 17:23 defining 24:12 definition 18:3 46:15 56:6 degree 26:19 35:25 36:8,8 36:17,18 delay 44:3 delayed 43:24 demonstrate 14:13 demonstrating 32:20 Department 1:19 depended 28:1 dependent 17:1 depends 12:14 27:24 28:5 depletion 50:11 50:13 51:2 Deputy 1:18 described 29:16 designed 25:16 determination 30:11 determine 41:22 43:19 49:23 determined 10:5 22:3,6 determines 24:11 developed 21:8 development 12:7 devoted 27:25 difference 16:19 21:16 31:19 38:25 47:3 differences 47:19 different 10:13 19:25 20:20 21:9,21 22:18 26:9 27:7,17 32:10 36:17 38:19 47:15 51:14 52:2 Alderson Reporting Company Official - Subject to Final Review Page 60 difficult 18:18 41:4 dioxide 5:18 6:7 7:1,9,15 11:13 12:25 18:2,5 22:14,16 24:3 47:11 48:6 direct 8:7 13:20 37:17 48:3 directed 51:8 disagree 19:23 21:9 23:17 disagreed 21:3 disapproved 9:19 disarmed 16:21 disavowed 5:25 disclaimed 6:9 discrete 16:24 discretion 4:1 19:12 22:1 41:22,25 43:7 43:10,19 44:14 50:24 dispersed 10:12 displace 12:8 distinct 14:2 document 26:2 29:4,21,22 43:3 doing 49:22 dollars 11:25 domestic 12:10 domestically 51:8 draw 51:25 drug 46:15,15 46:17 dumping 39:18 duty 41:19 42:12,23 43:1 43:4,18 dying 32:1 D.C 1:9,19 7:20 15:4 43:16 E E 2:1 3:1,1 easily 9:23 easy 11:2 economic 12:6 economy 48:2,2 effect 16:12 34:18,21 35:1 37:10 38:7 44:20 effects 24:2,24 efforts 51:6 either 35:2 42:5 either/or 36:5 electricity 38:21 elephants 47:23 eliminate 12:19 embark 25:11 45:7 51:21 emission 4:6 11:14 31:7 emissions 3:18 5:18 6:1,7 7:3 8:21 10:2 11:11 12:10,15 12:18,20 19:1 21:6,18 25:12 31:2,4,5,8,13 34:1,3,4,18 37:2,4 38:7 45:2,21 48:1,4 48:15,20 52:8 54:12 56:4 emit 17:20 24:10 emitted 5:10 16:15 23:8 emphasize 13:6 emphasized 54:4 emphasizes 54:21 enacted 46:8 encompassed 3:24 endanger 3:19 18:11 23:13,14 55:5 endangering 3:22 22:20 endangerment 4:2 19:4 22:5,9 24:11,13 26:7 43:18,20 54:21 55:1,17 endangers 22:16 23:12 endeavor 51:21 engaged 41:13 ensuing 37:22 37:23 entered 23:9 entirely 42:21 entitled 19:25 26:23 30:9 environmental 1:6 3:5 25:10 EPA 3:14,21,25 4:5,6 5:24 7:14 7:17 9:12 10:4 17:2,19 18:9 18:25 19:3 20:3,5,15,18 20:19 21:6,23 22:1,3 24:8,11 26:1,7,15 27:2 29:4,9 32:4 39:20 40:11 44:6,11 49:7 50:19,22 51:4 51:15 52:18 53:19 55:4 EPA's 3:17 7:24 18:17 24:15 25:21 erosion 36:16 errors 3:16 especially 9:6 ESQ 1:16,18 2:3 2:6,9 establish 4:13 8:4 31:17 39:11 40:16 41:5 established 13:5 30:23 establishing 7:23 21:5 35:7 et 1:3,7 17:15 ethanol 38:13 ethyl 21:24 43:16 evaluating 22:2 event 8:19 evidence 9:11 17:25 37:4 42:24 exactly 40:6,7 53:9,11 example 4:12 11:23 13:7,11 13:21 14:24 18:1 24:2 26:20 38:11 40:18,21 46:8 51:3 examples 43:8 executive 50:25 exercise 18:8 25:14,23 26:4 26:12 27:11 43:7,10 44:14 47:14 51:25 53:7 exercised 52:10 exercising 16:23 19:13 existing 15:2 54:3 expand 4:15,16 expect 35:23 53:17 expenditure 10:10 experience 50:10 51:1 expert 25:10 38:1 50:18 explain 24:21 54:23 explained 19:24 54:5 explains 43:4 explanation 18:18 express 23:6 expressly 18:1 extent 5:8 11:2 30:13 54:9 extraordinarily 38:4 extremely 56:7 56:9 F face 12:11,19 54:4,22 faces 10:22 fact 3:19 4:11 6:22 7:17 8:12 9:15 14:4 19:20 23:18 24:22 27:3 32:15 43:3 53:1 54:25 factors 28:18,19 45:3 facts 32:20 34:16 fails 3:20 24:16 fair 29:4,20 37:24,25 fall 46:16 fallback 3:21 famous 16:1 far 10:19 15:24 16:9 20:13 30:3 far-reaching 48:14 favor 49:4 FDA 49:2 feasible 7:2 features 49:15 Federal 16:22 16:23 17:7 feedbacks 30:15 feet 13:10 fewer 34:17 figure 7:10 Alderson Reporting Company Official - Subject to Final Review Page 61 fill 22:15 find 29:12 30:3 finding 26:8 43:19,20 findings 40:25 fine 36:23 first 3:4 7:4 11:1 14:14,23 18:22 19:10 20:7 23:25 25:21 39:23 40:15 48:7 55:24 five 6:23 27:5,8 fleet 11:21 fleets 6:19 focus 5:8 focused 11:4 focusing 47:16 follow 9:22 18:18 34:2 following 8:2 28:17 49:10 Food 46:15 foot 13:9 footnote 43:17 footnotes 43:8 foreign 27:17 50:6,19,21 56:2,4 Forest 16:7 form 22:8 54:18 forms 49:24 forth 41:19 42:25 found 13:22 15:4 44:18 45:11 four 3:18 17:24 27:14 fraction 11:24 37:1,6 38:6 frame 3:10 framework 49:17 fueled 8:3 fundamental 30:25 35:13 47:20 48:18 fundamentally 32:10 48:1 fuse 16:16 future 5:9 13:15 35:11 G G 3:1 25:5 Garre 1:18 2:6 25:4,5,7,20,25 26:19 27:23 28:5,23 29:3 29:17 30:4,21 31:15 32:9,18 33:2,12,16,22 34:10,13,22 35:4,13 36:11 36:19,23 37:11 37:25 39:7,23 40:6,14,24 41:11,21 42:1 42:15 43:2,15 44:1,9,12,24 45:10,18 46:1 46:7,20 47:9 47:18 49:9,12 49:25 50:8,23 51:10,17 52:5 52:13 Garre's 44:18 gas 25:12 31:2,4 31:5,21 33:9 34:1,3,25 36:1 37:4 38:6 45:2 45:21 47:25 48:3,15,20 52:8 gases 4:14 5:1 5:10 8:8 11:3 12:6 14:25 30:19 31:18 35:8,10 37:22 46:25 49:19 gasoline 21:19 gather 5:14,17 general 1:16,18 10:10 34:8 44:18 46:14,16 46:19 George 16:7 Georgetown 16:6 Georgia 15:10 Ginsburg 7:12 16:18 20:4 25:20 26:14 47:2,9,15 give 27:6 30:11 33:7 41:1 45:19,23 50:3 52:4 given 11:22 16:22 52:19 gives 17:1 giving 48:9 global 6:2 8:21 8:25 9:3 11:13 11:15 21:20 22:23 23:5,23 23:25 25:13,15 26:8 28:8 29:10 30:7,13 30:20 31:2,5 32:11,11 36:7 36:8,15,16,18 38:2,8 41:4 45:2,5,11 46:3 46:24 47:25 49:4,14,17 50:15 51:3,9 52:8 53:1 globe 12:14 go 6:3 9:8 28:4 29:5 30:24 38:17,19,21 39:1 40:11 50:6 53:15 goes 6:20 20:14 22:22 42:15 going 4:15 5:2 9:16 12:4,5,7 14:25 19:25 20:14,16,21 31:24 35:15 37:17 38:19,20 38:20 46:25 55:22 gold 29:25 good 4:1 29:14 38:14 46:8 50:18 goodness 53:16 government 9:15 16:23,23 49:22 governments 9:17,22 government's 41:7 grant 36:24 47:18 granted 33:19 granting 33:4 grants 36:12 greater 12:5 32:23,24 green 32:5 greenhouse 4:14 5:1 7:25 8:8 12:6,15 14:25 25:12 30:19 31:1,3,5,18,21 34:1,3,18 35:8 37:4,21 38:6 45:2,21 46:25 47:25 48:3,15 48:20 49:19 52:8 GREGORY 1:18 2:6 25:5 grounded 33:23 33:24 grounds 3:15,17 4:3 18:17 19:16 22:11,13 26:22 group 16:19 guess 19:12 28:18,21 H half 6:23 13:1 35:22,24 36:9 37:18,19 happen 13:15 20:14 53:17 happens 12:14 happy 52:20,21 hard 4:18 53:19 harder 15:1 harm 4:21,22,23 5:6,6 6:4,6,21 6:22 10:21 11:3 12:10,10 12:12,19,20,21 13:14,21 14:4 16:15,17 17:22 21:17 23:18,19 24:4,6 32:24 harmed 4:21 6:6 harmful 24:19 harms 4:11 5:8 9:10 11:8,22 12:18 24:15 33:5 44:19 health 3:19,23 18:12 22:17,20 23:12,13,14 44:20 45:9 55:5 hear 3:3 heavy 39:18 held 17:13 28:19 28:21 help 8:15 hide 47:23 high 16:4 hiking 16:6 hint 24:20 hints 56:1 hit 4:18 hold 7:13 holds 7:13 holes 47:23 Honor 4:9,24 5:5,21 6:8,18 6:25 7:5,11,16 Alderson Reporting Company Official - Subject to Final Review Page 62 8:6,16 9:6,21 10:13,25 12:9 12:16 13:4,19 13:25 14:3,14 14:23 15:16 16:14 17:3,11 17:14,18 18:15 19:3,15 20:17 21:11,23 22:24 23:16,24 24:7 24:25 25:25 26:20 28:23 29:5,8,17,18 30:4,21,25 31:15 32:9,19 33:2,17 34:13 35:4 37:8,12 38:1 39:7,25 40:7,14,24 41:11,21 44:2 44:15,24 45:11 45:18 46:21 49:10 50:8,24 51:10,17 52:6 52:22,25 53:11 53:18,23 54:1 54:13,17 55:8 55:16,24 56:8 56:10 horizontal 13:7 13:10 huge 21:25 human 5:16 hundreds 11:24 I ICC 16:4 idea 20:2 38:14 ignored 54:25 III 40:13,16,23 41:3 illegal 10:10 immediate 16:8 immediately 3:11 18:25 imminence 10:19 imminent 4:21 4:22,23 6:21 6:22 10:22 16:16,17 impact 21:20 30:15 38:16 impermissible 4:3 18:17 21:2 22:11,13 implementation 17:8 important 3:12 5:23 8:19 11:22 20:19 24:18 48:1 54:22 importantly 26:6 imposes 43:18 impression 42:22 improper 28:2 inability 16:25 inappropriate 28:11 42:9 54:11 incentive 50:6 incineration 16:2 include 56:9 inconsistency 48:18,21,22 inconsistent 49:1 increasing 37:5 independent 15:5 17:4 24:18 39:12 indicated 29:14 30:2 43:23 indications 55:1 indirect 48:3 individual 32:15 32:18 individually 29:7 infect 25:22 influenced 28:3 inform 40:21 information 19:17 21:15 inherent 41:22 50:24 initially 50:12 injured 8:13 injuries 34:19 36:13 37:7 injury 4:10 8:4 8:12 9:2,5 10:14,15 32:20 36:14 insofar 46:8,21 insufficient 35:12 53:20 intend 46:23 47:23 intended 45:1 46:4 interest 21:14 interested 42:13 interesting 29:12 interfered 16:5 49:6 51:16 international 27:8 49:17 50:4,14 51:5 interpretation 3:14 24:8,16 26:23,23 43:3 43:5,6 interpretive 46:12 intuitively 37:20 issue 3:18 6:5 19:1,22 25:9 27:1,5,19 28:8 30:12 31:4,18 40:20 47:17,24 49:13,15 50:11 51:1 54:19 issues 30:13,15 41:1 J JA 34:5 JAMES 1:16 2:3 2:9 3:6 52:15 judgment 4:4 18:10,12,17 19:13 22:8 25:19 41:17,20 41:23,25 42:13 42:23 43:13 44:7 54:19 judgments 21:7 judicial 42:2,4 jurisdiction 17:19 39:15 Justice 1:19 3:3 3:8 4:20 5:3,13 5:22 6:3,11,20 7:4,6,12,22 8:11,23 9:14 10:1,7,18 11:10,15 12:3 12:12,23 13:16 13:23 14:1,7,8 14:17,18,21 15:9,22 16:18 17:6,12 18:7 18:22 19:7 20:4 21:4,16 22:12 23:1,4 23:10,20 25:2 25:7,20 26:14 27:1,23 28:1 28:15,24 29:12 30:1,18 31:9 31:20 32:13,22 33:6,14,20 34:7,11,20,23 35:5,13,16 36:11,14,20,23 37:9,14 38:9 38:10 39:9,16 40:2,8,18,22 41:6,15,24 42:10,19 43:12 43:21 44:5,6 44:10,13,17 45:8,15,23 46:5,18 47:2,9 47:15 48:24 49:11,20 50:2 50:17 51:7,11 51:23 52:12,17 52:23 53:3,4 53:10,12,14,22 53:24 54:8,14 55:4,9,12,19 56:6,11 justified 28:19 justify 28:25 K Kadish 39:10 Kennedy 8:23 14:7,18,21 15:9 32:22 40:18 43:21 Kennedy's 39:9 key 45:19 54:19 kill 31:24 kind 16:8 30:11 35:9 kinds 4:11 17:22 know 6:5 7:8 10:19 11:6 12:23 15:9,25 17:12,24 18:4 31:24 35:14 38:12,13,14 49:4 50:5 55:2 55:3 knowledge 21:20 knows 43:6 L lack 19:17 lacked 3:17 lacks 40:12 44:16 laid 41:14 43:9 45:4 Laidlaw 13:22 13:23 land 4:19 13:7 Alderson Reporting Company Official - 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Subject to Final Review Page 64 43:18 ongoing 5:6 13:15 25:16 operandi 51:14 opinion 20:20 27:2 28:15,16 39:9 40:19 47:5 52:19 opinions 15:23 Oppenheimer 13:11 opposed 35:6 opposing 49:3 options 54:10 oral 1:12 2:2,5 3:6 25:5 Orange 31:21 31:23,24 32:2 32:5 order 4:5 9:1 31:17 36:3 ordinary 3:13 ought 30:5 outcome 7:21 outset 8:23 46:13 overall 11:3 13:1 overarching 18:18 override 25:18 41:3 owned 14:10 15:15 ozone 15:1 39:17 50:11,13 51:2 P P 3:1 page 2:2 19:21 34:5 pages 27:3,3,24 52:19 paragraph 34:5 parks 11:25 part 11:1 27:10 36:21 38:18 39:2 44:14 48:1 50:25 particular 7:25 8:1 10:15 11:8 19:13 27:1,19 31:3,14 40:4 particularized 10:14,21 13:21 particularly 4:18 30:10 54:24 parts 30:2 pass 4:4 passed 17:1 18:23 49:5,12 passes 40:9 pending 7:21 people 8:13 26:17 42:24 44:2 perceived 9:4 percent 5:18,20 5:22 6:1,15,22 7:1,9 10:2,5 11:4,5,7,10,20 12:25 13:1,8 31:4,12,12 32:16,16 34:11 34:17 35:20,20 35:22,24 36:9 37:2,3,18,19 37:19 38:18 48:2 percentage 8:20 31:13 33:8 perfectly 22:5 performance 7:18 period 35:22 permissible 4:7 30:16 person 15:18 32:7 39:1 persuasive 44:18 petition 4:7 7:17 19:22 Petitioner 4:10 petitioners 1:4 1:17 2:4,10 3:7 28:9 31:16 44:4 52:16 phenomenon 30:6 31:2 32:11 41:4 phrase 45:24,25 47:22 physics 4:13 5:11 16:15 37:16 pieces 51:12 pinpoint 33:10 34:25 places 12:7 plain 3:16 plaintiff 40:15 41:9 plaintiffs 25:17 32:19 plant 8:3 plants 7:14,15 38:13 plays 5:7 please 3:9 25:8 plenary 24:9 point 5:23 6:9 6:14 8:19 18:19 21:1 22:10 24:2 33:7,8,23 36:7 39:7 42:5,5 43:7,16 44:18 pointed 29:9 46:1 48:22 pointing 55:1 policy 3:12,23 20:1,2 21:3 27:7,17 56:2 pollutant 17:20 17:23 18:2 19:14 22:14,15 22:16,17,18,21 23:8,11,12 24:3,12,17,23 32:5 44:20 45:9 47:11 55:5 pollutants 8:9 17:21,22,25 18:4,24 19:2 24:5,14 51:16 polluted 39:19 polluting 23:13 23:14 pollution 16:2,5 18:4,6,6,11 22:19 23:21,22 23:25 24:1 44:19 45:12,14 45:16,25 46:2 46:3,24 47:1 48:12 pornography 39:4,5 portion 11:6,18 position 3:21 7:12 26:10,11 32:23 41:7,8 42:14 44:15 46:18,21 47:6 47:7,7 positions 26:21 possesses 4:1 possibly 20:8 potential 54:10 power 7:13,15 8:3 27:12 38:12 powered 8:3 precise 35:6 precisely 22:13 43:17 50:12 precluded 44:11 predecessors 26:17 predicted 5:4 predictions 39:11 preempted 17:9 preempts 17:7 preferred 54:20 prejudged 24:13 premise 6:18 prescribe 18:9 present 43:10 President 27:7 27:16 presumably 8:13 19:7 31:12 presume 50:2 pretend 38:1 pretty 49:1 prevent 24:19 36:15 preventing 4:12 prevents 49:21 49:22 pre-Massachu... 15:11 principle 3:17 17:17 19:8 54:5 principles 3:13 19:5,18 20:18 probability 32:24 probably 50:19 problem 8:20 11:6 15:17 19:20 20:22 22:13 24:4 27:9 32:14,22 49:7 50:2,9,16 51:11 53:1,2 problems 15:1 proceed 55:21 produce 10:24 produced 29:22 produces 44:21 program 38:21 projected 12:1 projects 13:12 proper 27:15 50:21,23 53:6 properly 27:18 property 10:17 Alderson Reporting Company Official - 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Subject to Final Review Page 66 right 6:5,7,14 11:12 12:5 20:4 27:21 31:10 40:5,6,7 40:10 41:2 43:15 44:14 50:8 rigid 13:3 rise 4:15,16,17 13:9 rises 13:6 rising 10:17 risk 32:24 road 7:9 31:6 roads 7:7 ROBERTS 3:3 7:22 8:11 9:14 10:1,7 12:3,12 13:16,23 14:1 18:7,22 19:7 21:4,16 25:2 31:9 40:2,22 44:5,10 52:12 54:8,14 56:11 role 42:8 51:4 room 19:4 20:19 22:15 rulemaking 4:7 7:17 ruling 4:2 5:24 running 27:17 S s 2:1 3:1 42:11 satisfies 24:8 satisfy 12:22 save 11:24 13:1 saved 38:16 saying 17:4 21:9 23:24 24:1 28:20 33:6,9 33:12,16,17 34:24 39:2,22 39:25 40:8,12 40:14 47:3 53:12,19 54:15 says 20:15 27:10 30:21 38:25 scale 8:20 Scalia 4:20 5:3 5:13,22 6:3,11 6:20 7:4,6 12:23 14:17 15:22 17:6,12 22:12 23:1,4 23:10,20 34:7 34:11 44:17 45:8,15,23 46:5,18 50:2 52:17,23 53:4 53:12,14,22,24 scheme 3:24 science 4:5 38:4 Sciences 29:24 scientific 21:6 21:13,17,19 25:15 28:7 29:8 30:12 53:16,20 scientist 13:3 23:2 scientists 29:13 31:25 scrap 16:1 sea 4:25 39:19 39:19 seas 4:16,16 10:17 secondly 40:17 section 3:25 7:19 17:19 18:3 19:24 41:16 43:4,11 48:7,11 55:7 sections 56:3 seeing 21:14 selective 30:1 send 27:20 52:18 53:5 sense 3:24 8:7 9:23 14:5 16:16 24:8,16 26:1 36:15 sentence 53:21 sentences 19:21 separate 44:1 46:9 49:13 sequester 38:12 serious 19:9 49:2 seriously 41:2 seriousness 19:20 set 4:5 seven 5:17 38:23 38:24 share 49:14 shines 18:19 short 17:11 show 4:22 8:12 9:3,5,23 10:21 11:2 31:16 32:20 33:3 35:6 36:3,6,12 36:22,24 37:5 37:9,11 showed 4:10 9:9 31:1 showing 14:4 37:13,14 shown 4:25 6:25 9:22 10:15 11:9,19 15:19 34:15 35:2 shows 37:4 side 29:19 significance 54:10 significant 10:6 11:23 12:2 47:3 significantly 49:6 similar 48:21 similarly 7:13 11:8 simple 32:10 37:16 simply 4:6 9:4 10:11 20:2 21:3 35:6 situation 50:12 six 31:4 49:12 sizeable 11:6 slope 13:8 small 8:20 10:12 11:17,22,24 13:6 14:17 15:13,15 32:15 smaller 32:24 Solicitor 1:18 44:18 solution 50:15 53:2 somewhat 14:2 sooner 19:9 sorry 55:13 sort 9:18,19 44:1 sound 42:6 sounds 29:1 source 7:18 15:5 17:5 48:3 sources 5:25 6:10 11:5 51:18 Souter 33:6,14 33:20 34:20,23 35:5,13,16 36:11,14,20,23 37:9,14 38:9 51:7,11,23 sovereign 10:16 13:13 14:6 15:7 sovereignty 16:25 special 14:12,19 14:24 specific 8:5 13:24 32:20 33:21,22 34:16 45:5 56:3 specifically 39:24 40:20 49:13 spend 20:11,16 20:22 spitting 9:18 sprays 31:22 spring 5:7 stand 17:17 standard 3:16 7:18,24 19:4 54:21 standards 4:6 18:9 29:25 49:23 standing 3:11 4:10,20 6:5,12 6:13 8:15 9:2,3 9:24 10:8,9 13:17,20 14:11 14:12,19,24 15:5,18,21,25 16:10 17:5,7 17:10 30:24 31:17 32:4,8 33:3,19 34:15 39:11,22 40:3 40:16,21 41:5 41:8 start 38:12 starts 9:15 state 13:11 14:12,21 15:7 17:8,9,15 statement 8:24 21:12 states 1:1,13 5:19 10:16 11:12 14:4 16:20,25 33:25 37:1 55:20 stature 50:1 status 21:17,19 21:19 statute 4:11 18:25 21:3 22:9 23:7 40:9 40:10 41:16 42:16,20,22 43:18 44:7,9 45:4,13,16,24 46:2 48:6,16 Alderson Reporting Company Official - Subject to Final Review Page 67 49:21 51:22 52:4 56:1,3 statutes 49:13 statutory 3:13 4:2 18:13 27:4 stay 5:11 stayed 7:20 step 42:7 steps 50:13 Stevens 29:12 30:1,18 41:6 41:15,24 42:10 42:19 43:12 44:6,13 stop 36:6,16,16 straight 12:24 13:5 straightforward 15:21 strange 48:13 stratosphere 22:22,25 stratospheric 16:12 22:18 50:11,13 51:2 street 31:22 stressed 47:4 strikes 9:18 54:14 strongest 13:17 14:9 students 16:5,6 16:20 studies 21:7 25:16 38:5 stuff 19:11 subject 4:19 submitted 56:12 56:14 subsequent 25:22 subsidence 4:19 substances 3:18 3:22 17:24 24:9,10 substantial 25:15 28:7 suddenly 5:6 sue 40:11 suffering 10:23 suffice 52:20 sufficient 13:22 29:2 35:2 suggest 38:5 40:19 51:13 suggested 24:17 suggestion 35:21 37:15 suit 9:22 13:24 34:2 sulfur 24:3 support 13:17 suppose 14:10 15:14 20:12 31:20,21,21 35:10,23 37:10 37:21 38:10,11 supposed 56:4 Supreme 1:1,13 15:6 sure 15:22 22:14 surprised 13:3 surrounding 25:15 28:8 30:6,12,13,14 system 48:21 T T 2:1,1 take 5:11 6:15 6:17 16:15,17 26:14 27:15 29:9 30:10,17 32:23 41:8 42:7 56:2 taken 28:18 takes 11:21 talked 9:15 talking 6:4 16:10 27:5 31:7 35:9,20 40:13 47:24 talks 23:20 taxpayer 10:8,9 technical 21:7 technology 9:16 9:17 tell 23:5 33:20 temperatures 4:15 Tennessee 15:10 term 24:12,17 24:20 46:1,16 46:19 terms 8:18 11:8 15:5 46:14 territory 10:17 13:13 test 4:2 24:16,18 text 42:20 45:24 Thank 5:22 25:2 25:7 52:11,12 56:10,11 thing 23:22 30:5 35:19 37:13 38:2 39:3 46:11 48:13 things 20:11 27:15 38:15,22 38:24 40:15 55:10,11,21 think 7:8 8:6 9:8 14:4,24 15:16 15:20,22 20:10 20:19 23:12 25:25 26:1,13 26:24 27:6,23 28:5,11,12 29:1,3,20 30:4 30:7,9,23 31:15,24 32:9 32:22 34:7,14 35:7,18,21 36:19 37:25 39:5 42:1,4,15 42:16 43:1,5 43:15 44:7,24 45:18,20 46:20 47:4,13,18 48:17 49:3,9 50:17,20,23 51:17,21 52:6 52:23 53:15,19 54:15 third 19:21 thought 4:20 16:24 17:2 22:17 42:22 44:10 53:4,5 55:17 thousand 32:3 thousands 13:13 threat 10:22 threats 19:9 three 27:14 28:17 threshold 15:19 44:15 time 5:8,11 11:21 20:13 22:1,9 23:21 25:1,14 26:5 26:12 35:22 38:23 48:7 53:19 tiny 37:1,6 title 46:9 today 3:4 21:21 39:13 told 23:2 total 5:18 11:10 11:11 toto 31:2 traceability 11:1 11:2 32:21 traceable 10:23 traditional 15:8 transported 16:3 tried 37:12 39:20,21 troposphere 22:25 23:1,23 troubling 54:25 truck 32:17 true 13:8 21:12 26:9,24 31:15 34:13 39:12,13 41:11,12 51:10 truth 23:5 trying 36:21 39:3 49:7 51:24 turn 3:11 4:9 6:19 11:21 17:18 41:16 turned 7:17 turns 3:13 39:4 Twenty 27:3 two 3:15 12:25 19:21 21:21 27:8 35:22,24 36:9 37:17,18 39:24 40:15 49:14,16 50:25 51:2 52:19 two-and-a-half 11:20 12:25 13:1 type 41:13 types 17:21 U ultimate 28:3 ultimately 7:6 9:8 uncertain 30:8 uncertainties 25:17 uncertainty 21:8,13,22,25 22:2,4,7 25:15 28:8 29:8,15 30:3,6,12,18 53:16,20 54:3 54:5,15,18,22 54:23 uncontested 4:12 9:9 14:25 understand 6:11 6:20 17:6 41:6 42:11 44:5 55:13 understandable 21:14 Alderson Reporting Company Official - 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