tv Key Capitol Hill Hearings CSPAN December 31, 2014 8:00am-10:01am EST
this if moving the export ban does have impacts on different sectors in the economy and independent refiners are very concerned about -- >> let me ask -- >> how they would come out in that analysis. >> what happened in the '90s is because we weren't producing lighter swede in the united states, most of our refiners were successful converted and the cost, i no one refiners about to put $5 billion. to convert to do the heavier crude. having all put any cost estimates on -- >> congressman, you are right in there. we should come up and brief you when we have this study done. we're going to have some estimates in the of what calls are associate with adding the equipment is needed to take care of this increase in lighter crudes and how fast those lighter crudes will be gone. what we do know is that over the past if you look back over the
last decade, billions of dollars were invested in upgrading refineries in texas louisiana and those were on the gulf coast to process heavy crude oil now we have a surplus of light crude. so it's created problems. >> i think the concern of surplus of light crude, because they are typically the shale, those wells are very short-lived, but they're much cheaper to drill in the army are once. so there's some issues with our be going to have to reinvest for those refiners another $2.5 billion to handle the lighter crude? >> there are upgrading and new construction projects underway right now to allow the refiners to handle that. a lot of those are taking place in your district. >> as eia looked at the issues? in the past we typically choose whatever we refined in the
country, but now we are producing so much more that it's actually, we're having those downstream jobs better exports. back in houston were exporting just times in the last few years of low sulfur diesel. because of the heavier crude we get more diesel in the buffalo soldier diesel actually is improving the environment in the companies in the country sending it to come in latin america typical our customers are and of course, europe the latin america predominate. have y'all look at some of those issues? am going to ask if that's been looked at by our environmental community. has eia done that? >> that's going to be part of our study. >> i look forward to the study. ms. gordon, has there been any qualification of that, even though we're doing heavier crude and producing a lot more diesel that we don't use that our country, a result of low sulfur because that helps put in the
countries that are by that from us. now compared to the diesel that may be coming from other parts of the world. >> yes. certainly taking the sulfur out will be fantastic for health and for the environment, but the question is for the heavier coat. when you put koch into these refiners you basically remove the middle of the agenda put a lot more gas and diesel which is good for profit and a lot more of solid substance called petroleum coke. we're also exporting that but i think with increased appetites of increased use has increased its exports to china like 70 fold in the last several years. it's a coal subsidy and it's worse than coal insurance of emissions. a kind of cuts both ways. >> mr. chairman, i know i'm over my time i like to talk about petroleum coke when i get to my time. >> recognize the gentleman from ohio for five minutes. >> thank you, mr. chairman. again, as has been said thanks
to ofto her been listening here today. it's been really informational. really appreciate your time. if i could kind of a few points. as we been sitting here i checked when we started the committee that was texas selling $60.70 when i started. at this time it's down to $50.51. brent dropped to 64 in the last few minutes. i think the discussion would have been is very informational. also in "the wall street journal" this point the headline of one of the sections of the paper about with the decreasing costs of oil in west texas and what's dashed of what that is doing a special west and of course in ohio and also in pennsylvania with our show we're developing in our state especially for me in ohio, it's really interesting and it also
you are concerned because as the price drops we want to make sure that we can keep that production up and also keep people out there producing. if i could go to your testimony i found it interesting because on page five you state that u.s. crude imports have declined by 2.4 million barrels per day or 25%, the lowest since 1995. and it persons to use crude demand supplies but imports is all about 47%, the lowest level since 1992. in the testimony of all been talking about today, special about the oil coming in how much when that oil comes in that we've imported goes back out as an export? just out of curiosity or product. >> the u.s. has net product
exports of about 2 million barrels a day. so the gross amount of imports and exports are different than that. we are exporting we are now kind of getting up close to 4 million barrels a day of export but we are also importing from especially gasoline into the east and west coast. so when you net out it into thing about 2 million barrels a day. back to congressman green's comments, a lot of that export a product is coming from the gulf coast region of the u.s. is going to cut in latin america and europe. the gasoline one of the better exports that we have is gasoline, and the reason for that is we just don't need here in the u.s. and it is needed in place in latin america. >> well, okay. if i could turn to mr.
pugliaresi -- i hope i pronounced your name properly -- you know as we look across what happened and we're seeing the increase here are the any regulatory or market barriers preventing our refiners out there right now from doing anything else to adapt to these new surges we're having? >> well, you know, i do think the refining industry is a lot of the downstream processing sector to face a pretty formidable regulatory apartment. they also face a fuel constraint, like the renewable fuel standard i think, you know it's not that ethanol, for example, is a bad thing. i think ethanol is for useful to the american transportation fuel sector. it's a mandates that gives you all these problems because dementias radically on the supply-side shifts radically. the refiners are unable to adjust in a cost effective way.
i think that as we go forward and look at crude exports come we don't want to unnecessarily harm these high-value added downstream processing centers. they add a lot to the economy as well. we are not in favor of protection but we are in favor of taking a hard look at the trade adjustment you need to do when you move into an export. and export mode. >> thank you very much, and i can think of analyst and mr. chairman, i yield back spent at this time recognize the gentleman from california for five minutes. >> thank you, mr. chairman. suppose abuse becomes reliable and consistent exporter of natural gas and crude oil. how much impact will our natural gas exports have on the geopolitical issues relative to
much impact our diplomatic and military policies have on those geopolitical issues? does anyone care to take that? >> i mean, i could just say that because these oils kind of trade as light types of oil as i've been talking about. you do have to look at the geopolitics in the kinds of oil we would exporting. so the light titles i mentioned earlier have backed nigerians imports of u.s. we produce more that oil can we're importing now no oil from nigeria. were still importing oil but it's just not from nigeria. as a jew political impact on nigeria, and i think even though oil is not being used in at all as whether it is of being something that can counteract the peacekeeping and the other efforts we have in these very fragile nations around the world. venezuela was mentioned. >> i'm thinking particular
russia and mr. putin. will our exports have more impact on his behavior than our military or diplomatic activity? >> it's a good question but i do think that russia is reeling from the price of oil. so it's not out exports that are really changing what's going on in russia right now. it's just the amount per barrel of oil. that's not about our exports spent if i could weigh in on that. the problem we have is twofold. we've had a lot of i think compassion proposals do something to help ukraine with the russian crisis, and to the geopolitical events, but the reality is of course that i oil and gas are owned by private companies and they are likely to shift the oil, or gas oil if we allowed it to where the market
kids us the greatest profit. right now although it is changing before us as i speak there's always been assumed that the market for lng primarily, we be in the far east because the premiums their have been much higher than those in europe. although now with allen schick prices crashing in asia down to very low levels where it's even questionable whether we can deliver lng into some of those markets competitively by the time i actually have lng, people ready to go outside contracts that have already been signed. geopolitically i think the issue of exports is extra important to our allies in korea and japan and taiwan are very desirous to have energy from the united states because they see and increasingly bellicose china threatening sea lanes on which all other energy imports come from, not on oil and gas but also called. so they're delighted. i think it does improve our diplomatic status to the extent
that we sin energy there. but again these are going to be commercial choices made by the countries that own that oil and gas. >> it was clearly a complicated question. >> very complicated. >> how much, whether to answer this, how much d.c. oil exports, how d.c. oil export increasing overtime if we were to repeal the energy policy and conservation act? do we see a large bomb or do we see a slow increase? -- bump your county we see that playing out a? >> well, eia is can we do tend to look at those in our annual energy outlook's which we do every year will have that one out hopefully sometime in late february or march. the answer to that i think probably lies more towards the lower end rather than the upper end. the reason i say that is that
the kind of oil we have in surplus here is light, sweet crude. the market for that is not unlimited. so the question is how much of that could be put onto the global markets before you saturate the global markets. something on the order of a million or 1.5 million barrels a day might be the number that would be exported. >> thank you, mr. chairman. i yield back. >> recognize the gentleman from west virginia for five minutes. >> thank you, mr. chairman. had thank you to the panels. this is very interesting at the end of the session, this would've been more interesting perhaps a little earlier because some of the subjects we've gotten into have been particularly beneficial. i have a sense of questions as waiting an hour have, my question was just asked by my predecessor. [laughter] because the want to get into the geopolitical aspect of the. i think you have answered in
some respects, perhaps we need to get into that a bit deeper. one of the question i would ask you is who is asking for this ban to be lifted? >> well, the first groups our producers that have wanted to see the ban removed from are those are producing the lives of the crude oil. because that's being discounted the most and attractiveness of exporting that into the global markets is high. and so we have seen that coming from some of the independent producers in texas. >> well, i'm also curious if you forget to my last forever questions are but one would be bad towards the tail end of the bush administration gas was selling at $1.85 a gallon. now we went to $3.50 almost
$4. is the impact -- what caused that? >> say that again. >> when gasoline prices at the pump were $1.85 of the bush administration, what happened to take them up to double? >> the biggest thing, the overwhelming most important factor in gasoline pricing is what the price of crude oil is in the global markets. next biggest thing after that is probably the different levels of taxation and different states. >> that hasn't changed much. taxes hasn't changed much. so speak the crude oil prices go up and down spent crude oil is now $63 or something like this. where was it -- >> it had been on average of over $100 a barrel.
>> but i haven't seen the price get back to where $1.85 yet. was going to take to get $1.85? >> it might've been $1.85 when prices were a lot lower. when we had $40 oil then -- >> so your answer is we need to increase to get about $40 spent there is one of the issue that i think is controversial but i think if you look at it you will find that mandates for biofuels been mixed with gasoline, we have seen ethanol prices go up very high and some of those markets and has been a major contributor. >> i have less than two minutes. i have a small geek refire in west virginia -- small boutique. fills the niche. what could be the impact if the export and was lifted? will be the impact?
22000 barrels a day. >> in your area, probably very little. >> because? >> those refiners out in the midcontinent where they have access to discounted wti benchmark crude would see their costs go up spent i think they are starting to tap into the utica shale gas providing the crude but ill be able to tap into the so you are thinking they will not be effective? >> in your state spent welcome they shipped all over the country, but it -- >> right. the question is what is the cost of peace talks in the refiner in west virginia be and i suspect it wouldn't change that much. >> okay. thank you very much.
i yield back the bounce of my time. >> at this time recognize the judgment from texas, mr. green, for five minutes. >> thank you, mr. chairman. and get back to some of the issues. first, try to i would ask unanimous consent to place a statement into the record. >> without objection. >> i think it's no doubt, in fact the cbo report that was just released talked about a policy shift in exporting crude would pinch profits refiners. let me go down the list about we are exporting oil now but it fits the definition that there's actually a mechanism where you get that light is weed out of the ground, you run through what i would call a very limited refining process. but it fits that we can export right now -- light sweet.
how does eia classify lease condensate? or is that exported? >> the are at least four big ways of trying to find condensate. the way eia has historically done this is literally based on the location but if it's produced on an oil lease and is mixed back into the crude oil stream we count it as lease condensate and measure it in barrels. >> is that same definition as the department of commerce for export? >> the department of commerce is looking at it from a different standpoint, and reportedly the commerce department is now through letters to the individuals who asked for a ruling on it is allowing
processed condensate. so if you take this very light crude oil, process it, it would qualify as a product, products under u.s. law right now can be exported. >> okay. would it help having uniform definition of government agencies, particularly if lawmakers wanted to craft better regulation or legislation to have one definition for condensate? >> we have been trying, at eia we've been trying to understand the different definitions, and i suspect that a one size fits all might not actually work perfectly. we would still have at eia, for example, we would want to make sure that we're able to count this process condensate, so we don't double count how much of the material is in our system.
that's a complication of the existing rules. >> does eia track exports of condensate production now, our production and exports? do you track any of that production? >> the export data is provided to eia by the customs people. and so we do not have, have that. we do our own survey of imports. interestingly, if you think about all of the history that's been brought up here today, we wanted to do our own survey of imports because that was what was really big and that was what was supposed to grow and we don't have a survey of exports. >> how readily available is that information? >> that information is actually, is available from the customs people, and we've been working with them on speeding up and
eia's ability to get that data. >> okay. dr. ebinger, i know your testimony in your briefing book big bets and black swans in early 2014, he authored a section to the the ban on u.s. oil exports. you state that under combination with increased investments of infrastructure are expected generate income, jobs and taxes through production chain but do you think domestic transportation of oil is a major factor facing our energy sector? good example, limitations on pipelines? >> think the fact was not built some major pipelines, keystone being one of them has certainly led to a more dangerous transportation system by rail particularly but also by truck and barge. a more expensive transportation system and would be needed if we
built some pipelines. so you know i think if we're going to accept unconventional oil and gas drilling to which i certainly do, and we need to build the infrastructure as cost-effectively as possible to get that to market. >> mr. chairman, thank you. >> recognize that children from kansas for five minutes. >> thank you, mr. chairman. i did a little work in the run up to this hearing to see which of all had predicted $63 oil on december 11, 2014 to manage again. you should osha should count yourself among the many. i could find anyone who did. i saw a few traders to make a claim that they were in the market at the right place on on the short side and got to the right spot. i mentioned that only because when you talk about more data can want more information in the hands of government and all that, i think if we unleash a markets, glorious things will happen. and so i've heard multiple things today but i've heard folks talk about an export ban
lifting, which is right to me, good direction. i've heard folks talk about the joints act. enormous cost on our refiners with renewable fuel standard and we've seen a government agency totally incapable of dealing with the transition of what happened in the marketplace. can't get a set of rules out to deal until folks want to build. based on some british and the congress said come as we all as policymakers think about, how we're going to handle this, we should not be at all certain that $63 is here for tomorrow, let alone for two months or three much. no one mentioned the greenhouse gas rules that are about to hit. america, no one mentioned café standards. such a dramatic impact on transportation and use it for them. you mentioned natural gas transportation, mr. ebinger, gosh, if we could get it out of the wettest in between us and them. i couldn't tell you that are gas prices prices, folks it want to
confess. but the truth is you have markets operating in a state of uncertainty try to get to drown out. and we should not have the hubris to think we should have any possibility of getting in front of that place. so as a think about this export and i think it's important that we don't let an export ban based because today we have certain oil prices that are sitting in the low 60s range but i think we made a mistake in putting them in place in the 1970s. i think that's the kind of thing that policymakers should all consider. want to ask you, mr. sieminski you did a month, a report a month ago, the saudi change the world here in the last quarter. doesn't change how you think aboutabout the study the that you put out in any material way? >> no, i believe that study is probably, still valid in terms of trying to understand what it is that relates to the price of gasoline in the u.s. to the
global markets for either crude oil or gasoline. mr. pompeo i think your comment about the eia predict $63 oil? no, we didn't. i would like to say in my defense -- >> no, defense required. >> we thought, every month we publish something that is worth thinking about. i mean for everybody. we use the options market for crude oil. to work backwards to what the confident -- constant interval is on forecast for crude oil prices. six months ago that interval got down to the low 60s. so we hit the bottom of the 95% confidence range and for the committee today i just looked at some numbers for west texas intermediate, 95% confidence range, will it fall in their, is for april of the coming year is
$50 to the low side and about $90 to the high side, and that's telling you that the people who are in those markets -- >> real -- >> they are not sure either. >> i will ask anyone who wants to enter this. i've read articles recently pop news was anything else, but whether opec still exists. if it's still the same force when i was little but younger could affect markets in the trailways. we talked about these books that change. does anybody care today wants to say that opec is dead? >> you know, i think market power, market power some producers waxes and wanes. if you have enough production outside of the other, you know low-cost, high-volume producers,
their market power gets reduced and that's what you are seeing now. the dissipation of crude oil outside of these few players, which north america is a big force today, is undermining the capacity of other folks to constrain output. that's just the reality of it. that's a huge benefit of this north american platform. that's what we are to the attention how it performs to make sure the raiders were employment that doesn't hurt it. >> thank you. my time has expired. thank you, mr. chairman. >> recognize that this on the gentleman from new york mr. engel, for five minutes. >> thank you very much, mr. chairman. you know last week i moved my office and we had moved in 10 years so we're throwing out all kinds of things, and it was this huge chart which said, the world according to oil.
and it either shrink or increased the path of different countries based on the powerhouse of oil. and it's interesting because that was probably about 15-20 years old. the united states was every time. saudi arabia, venezuela were very, very big and they couldn't help thinking if we did that map to think how different it would be. and i think that's a good thing. mr. mcnerney asked about the geopolitical impact of it and as did the ranking member of the foreign affairs committee which i am, i care about the geopolitical aspects of it. i like the idea of countering mr. putin. european countries are reluctant to stand up to him because they need his oil. if they could buy our oil they might actually develop a backbone.
so i've looked at this in a totally different approach as a look at before. but everything of course is still a balancing act. i care about the environment. we want to make sure that we can continue to export an increase the export it and i think it's a balance. so i want to say dr. ebinger i read findings of the report which lifting the ban on crude oil would boost u.s. economic growth and put downward pressure on world oil prices. and larry summers also called for lifting the ban to let me ask a few questions for anyone who cares to answer. ..
which shall plays are they getting there condensate from. do you know? >> the eagle ford. >> where did it go? are their existing refineries in friendly parts of the world to find this additional crude? >> most of the shipments went into the far east probably korean-made the singapore market. i don't -- the department of commerce has a much different policy toward handling data and this is considered proprietary information. it is not publicly available yet. >> i would like to add
petrochemical feedstocks for condensate largely is going to different -- it is not going to refining but making petrochemicals. the far east makes sense. >> thank you. i am asking these questions the cause obviously in addition to economics environmental conditions and geopolitical factors, i really think the whole thing is a balance but i do think that this is something we should look at very seriously. it makes sense to me because the united states being a world power has to be concerned with geopolitics and when we are trying to get our allies in europe germany and other countries to stand up to vladimir putin and his aggression to ukraine, there was some reluctance because they rely on russia for their energy resources and i can tell
thinking if they relied on us or we were available, we could exert more pressure and that would be an important policy goal in the united states. it has to be balanced with environmental concerns and other concerns as well. thank you all. >> gentleman yields back. the gentleman from nebraska for five minutes. >> thank you. one of the reasons i ran for congress 16 years ago was the highest level of reliance on foreign fuel to fuel our economy and i wanted to change fat. i am pleased to see we are down to 33%, we are only 33% of our fuel needs our oil as imported now. in a geopolitical sense why do
we still have 33% import of oil into our country? mr mieminsky. >> with any year-and-a-half the u.s. will be a net exporter of natural gas, we're already a net exporter of coal. we don't import very much electricity. a lot of that comes from quebec and canada and saskatchewan. on the oil side we are a net exporter of oil products. the only thing we are still importing is crude oil and those numbers will come down if you say do you want that to go to zero, not necessarily. can we import oil and sell products? >> particularly venezuelan oil bothers me but do we have a
geopolitical responsibility to allow some importation of venezuelan oil? >> i will stay away from policy decisions of what we would want to do with venezuela or not but i would say they are the top of the list of what could go wrong in the global markets to push prices up you have iranian sanction issues, the isis problems in iraq, maybe opec will at some point decide to reduce production. you could have difficulties in russia even. there are lots of things that could make prices go up. prices could come down too. what really triggers prices coming down, over the course of the last few months was a combination of the unexpected recovery of oil production in libya come at the same time that the economy in china is slowing down and demand forecasts began
to recede. in that background of increasing u.s. oil production accommodation of all those things was the tipping point and change everybody's mind what the future looked like a. >> one of the things i would encourage members to do is look at this through a north american lens. when you put canada in the minsk, we don't like this self-sufficiency approach to thinking of energy security. we want this platform to be productive, the u.s. large continental land and mexico, think of it as north america, they may be efficient, there may be efficient solutions for the platform which allows exports and imports but refining configurations are all different kinds, a lot of heavy capital invested in processing heavy crudes so heavy crude got to come down from canada and get
processed. that is where it is most valuable. >> that makes sense to me and in a refining capacity in the united states, and i will follow up on your comments here. are we ready to be able to expand or do we need to expand refining capabilities in the united states if we have a mix of more sweet and heavier crude from canada? who wants to go with that one. >> is difficult to convince refiners to expand capacity when the demand in the u.s. is going down. typically refineries are built closer to where consumers are. we have a terrific advantage in technology and low natural gas, natural gas is used as a refinery fuel that make our refineries the best in the
world's. taking advantage of those situations i think, is what the refiners are doing exporting products into the global market. >> i could say in terms of the global production has become very -- it is not site specific any more. it is happening all over but it also happens in refining. countries that added more refining capacity to the world market than any other last year was saudi arabia. refining capacities saudi arabia adding refining capacity and demand is in the developing world. the move that demand closer, refining products closer to what people will consume lan america the middle east, africa where future demand growth this, the whole market is shifting somewhat. i don't think you can draw a circle around north america
easily in this market. >> although i want to. the gentleman from new york five minutes. >> thank you, mr. chair. in a number of hearings i have attended i noticed when the subject is an environmental health and consumer regulatory issue there are questions about the estimates of the cost and benefits of a policy in question and that is fine. those questions explore the assumptions made in the analyses relative uncertainty or 70 of the estimates and how sensitive the results are to changes in the assumptions, initial conditions, data that going to the model. this is a major focus of most conversations about the projections on climate change with much emphasis on the uncertainties and we don't know and little emphasis on all the things we have learned in the robust conclusions of climate models. economic forecasts don't receive the same scrutiny and frankly they often miss significant
changes. we spilled blood and treasure over this, it plays a major role in fueling our economy. we need to understand fully the implications before we make this change. and provides the results of the latest short-term energy outlook that includes the disclaimer, dramatic declines on crude prices may affect our outlook in coming months so i would like to better understand how robust these benefit estimates provided in the study referred to our likely to be. there's a positive picture about lifting the crude-oil export ban reporting a gain in gdp over the next 25 years to $600 billion or $1.8 trillion. that range is dependent on which scenario is used. these are model results based on
model results. c i a model results. what are the assumptions i would ask the panel about low world price of oil and the underlying scenarios, how >> reporter:s as the price impact those given estimates. >> hon. sieminski if you could please. >> congressman, we will be looking at this and we will have a lot more to say when we publish the energy of look her in next year. what i could say is lower oil prices if they were to remain will slow down this growth in u.s. oil production. supply and demand. the other possible effect they could have is to make it less profitable for companies to export natural gas in the form
of l n g from the united states. the reason for that is exports of lng from the united states are predicated on selling into a market where that gas in europe or asia is priced at oil equivalent and a lower oil prices, the spread or profitability of exporting u.s. lng into the global markets would be reduced so that might change those dynamics a little bit. so there are going to be a lot of places in our forecast where building in a possibility that lower prices could stay for a while would have an impact and we will have plenty to say about at and in come months. >> do you have anything to to add to that?
>> if we look at past situations where we had precipitous price declines i think you could look internationally and say the price declines at some point become the engines of renewed growth because china and india and brazils of the world all of a sudden if they start seeing $50 oil they start saying let's rejuvenate the economy and rev up projects that didn't make sense at $100 oil. remember it was in 98 the price of oil fell from 117 to 118 down $30 in 7 months but it came rapidly backup. if i remember correctly into the 70s and worked its way up to where it was before the current price dropped. low oil prices for those countries that are huge oil importers and fast-growing populations we talked about in asia low oil prices are a blue mend at some point it will rejuvenate the chinese and
indian economy is and bring hopefully the rest of the world along with that as demand for goods and services once again intensified. >> i yield back. gentleman from virginia, mr. griffith for five minutes. >> i appreciate that. i love coming to these hearings and listening because i learn all kinds of things. it was worse than cold. that is from a pollution standpoint. can you explain that to me? >> petroleum coke is the bottom of the barrel, when you bring all the lid without heavy oil, and the refining process, and the bottom of the barrel. and cleaves these molecules, you get more liquids out, more liquid or solid petroleum coke
solid fuel and it went into steel and glass and manufacturer. high in sulfur and heavy metals this comes out of the oil production process that goes into power production and basically burning coal, it has 10% higher greenhouse gas emissions and coal and higher nickel, vanadium, sulfur, the worst coal it runs counter to coal so when coal is traced high as it has been recently, before we were exporting coal, a was an economic benefit for them to burn coke instead of coal. now prices of coal are low so coke is a little out of favor so if you remember last year, in detroit, there was a pile of petroleum coke the got a lot of
attention. it is voluminous, they are spreading in alberta, it spreads for miles because it is landlocked they can't export it. it is a problem so the we export petroleum coke because we are closer to two ports of call. >> let me go back on your testimony little bit, you said it is now cheaper or more expensive than coal products. >> coal prices have come down. it is priced to sell. high to get data on it actually. it is not traded, it is traded -- person to person company. because it is not by product, and have to get rid of it. refiners' running a lot, they have to put it into the market so the price is volatile.
>> from an environmental standpoint, we are better off exporting low-sulfur coal from the united states in central alachua. mr. mckinley represents flooding the market in china with this pet coal coke. >> that goes for it. >> i appreciate it. pipelines were brought up earlier, whether or not we should be building them in the safety of bringing the oil and i understood from the comments, the 10 or of the comments that the consensus or a general understanding is the oil will find a way to the united states coming out of canada whether by pipeline or truck or train, is that a fair assessment? you can answer that. >> no question of costs. pipelines, there's real value to rail, low option where markets
are not settled. it is more interesting. no need for review. if you cross federal land and do some action that is going to trigger a need for review. and regulatory program is somewhat on balance. and to move things out quickly, build a pipeline, a mountain of paperwork intervenors before you. >> one of these questions that was not asked in relationship to the international situation, the u.s. won a trade case against china over their export ban on rare earth. how does that case appear from a public perception standpoint when we are banning the export of oil product and does that weaken the president's hand in these discussions with other
countries about exporting rare earth and the u.s.'s position on oil? anybody want to take that one? >> it has been raised by a number of people in the think tank's community as an issue and i know a number of international trade lawyers think it is possible that someone might bring an action against the united states for the continued ban on crude oil exports on the same premise that it is an unfair barrier of trade. >> because china's will tends to be heavier, refining capacity -- because we export products a lot of products, there is no ban on that, substantively -- >> bringing action but in the think tank world there's concern someone else might bring an action. maybe someone else. i appreciate that. my time is up. >> thank you, mr. griffith. that concludes the questions. do you have additional
questions? >> i would like to follow up with mr. gordon. >> recognized for five minute. >> thank you. the energy policy and conversation act of 1975 that you discussed, importantly, also address vehicle standards, energy efficiency conservation and petroleum reserves. if the next congress addresses the export issue, should there be an effort to address other sections like the strategic petroleum reserve? >> we are in a transition when it comes to will and that is very obvious. oil policy energy policy is going to be an important new chapter that follows. >> most of the strategic petroleum reserve ease east of where i live in southeast texas.
it is important. if we are producing what we are we are still not producing enough oil for our own consumption mainly because of the types of oil we had they were retools by heavier crude. and it would take billions of dollars to do the latest week and to reach an investment decision if that happens. in your testimony you discuss environmental risk as stated earlier, conflicting climate articles discussing u.s. refined product exports, the u.s. refined product is better or worse than the product currently consumed in other parts of the world? do we produce gasoline or diesel better than india or china for example? i know we compete with europe. >> from a climate perspective it
is coggan. it would be similar. from an air quality perspective it depends on the finding specifications and they are lower in europe. from a climate perspective i don't think there's a difference. >> there's a ton of carbon going up in china, the same as a ton of carbon going up in east harris county and some of us would like to see a national agreement so we don't compete with one hand behind our backs. exports condensate deal for low-sulfur diesel and i mentioned it earlier but that is benefiting our trading partners in latin america particularly europe because we have low-sulfur diesel and dino the refining industry went through some problems they are doing very well in exporting it. does that help the climate, the pollution issues in other countries?
>> not climate but air pollution. better in the air so it would be more of a respiratory issue and not climate. >> that is more the immediate rise in sea level and things like that but it does have a benefit for those countries. let me talk about petroleum for the last minute. the highest mountains, the highest points in my district is either a landfill or petroleum coke. it is shipped out. and loan guarantees to the department of energy, wind and solar and my colleague joe barton is not here. we put in research and what we could utilize petroleum coke for other than shipping it to china and india to burn which again put scott and in the air but the local, is there any support for
trying to do something--an alternative? i got involved with coal ash because it was used for road beds. is there anything else we could use for petroleum coke? we can't turn it here because it is so bad. >> the bottom of the barrel, no economic lost and putting more money into it. these are things you could do with that petroleum coke, fuel grade petroleum coke, take heavy-metal and make it actually a beneficial industrial byproduct but it will cost money to do that. >> is not economical. much cheaper to send it to someone else to burn it. >> one thing about this. it is important to remember this is a strategic asset. we are connected to the world oil market. we might have to change the way we distribute the f c r because of the huge flow of crude oil
into the gulf coast but i don't think -- we will study this carefully. things can change in the world and we won't get rid of the 80 second airborne and we need to look at the sp are that way. we may need that. even if we are relatively independent of price spike in the world oil market from a catastrophe summer does a lot of damage to the american economy. >> where i come from the goal of that was to buy the oil and put it when it was low. when we release it because when oil goes up because of an embargo or whatever else, you have been more than kind today, thank you. i also want to mention bill flores is here from texas, was recently elected chairman of the republican study group he is a member of the energy commerce committee and the 114th congress and a member of the subcommittee
and use eds -- so patiently for all those hours, you want to ask a few questions before we get out of here. >> i heard the voting buzzer go off. thank you for recognizing me and allowing me to have the time. i will keep my comments short. one of view, more than one of you on the panel talked-about the cumbersome this of having federal policy interfere with free markets and i think that is something we need to remember, any time we try to violate the laws of economics it is like violating the laws of physics. gravity is an example. the more you violate the law of gravity the harder the impact that the end. that was one of the first thing this my economics instructor taught me back when i was in
college. on our side we need to be constantly reminded the free market works best when it let's the federal government doesn't have too heavy a hand. there was a conversation about the transparency related to oil markets and i vigorously disagree with those comments because of this. if you say there's no transparency the buyers and sellers taking this oil and refining it know nothing about it. that is not the case. that oil has been -- it is being bought and sold and refined and put into finished products and being sold and consumed so to say there's no transparency in the market is false. buyers and sellers are happy with the level of information they have. if they weren't there would be no training. there would be no commerce in
those products. i would not like the panel to get too of fixed to those comments because they are just not true. thank you. i hope everybody has the merry christmas. >> unanimous consent, willing to respond to that. >> there is some transparency in the market. the best example of why there is not enough information in the market is the explosiveness of the rail cars. the market really did know about that. equipment wasn't really designed to deal with fact will. we are seeing physical manifestations of the fact that there isn't enough transparency in this market. >> do you want to ask unanimous consent?
>> i ask unanimous consent that this report from the united steelworkers would be concluded and i have an article from mr. mason on fracking to be included into that. >> included in the record. i would like to put into the record a letter, letters from the petroleum institute, american fuel and petrochemical manufacturers and diesel technology forum. that concludes today's hearing, your testimony and your patients and responding to our questions and we will have more hearings on this when we reconvene for the 114th congress and the record will remain open for
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booktv. for 15 years the only television network devoted to non-fiction books and authors. c-span2 created by the television industry and. like us on facebook and follow us on twitter. >> the supreme court earlier this month heard a case involving a alleged discrimination against a pregnant woman. ups driver peggy young asked to be reassigned after her doctor told her she should not lift anything over 20 pounds. ups did not reassign her and putter her on unpaid maternity leave. the issue before the court whether the pregnancy discrimination act required them to reassign her to new duties. >> argument first this morning 12-26. young versus newted states
parcel service. mr. bag again sos? >> resulted from any number of. but because peggy young's 20-pound lifting restrictions resulted from her pregnancy and from not one of those conditions, ups rejected her request. that we submit is a violation of the second clause of pda if it means anything must mean when an employee seeks accommodation or benefit due to her pregnancy she is entitled to same accommodation her employer would have given her. >> you make it sound as if the only condition that was a accommodated was lifting restriction because of pregnancy and i did not understand that to be the case. that is the way you start. you want to say it is only pregnancy unless i missed something? >> so i think on the summary judgment record here, your honor, the three very broad classes of limitations that ups
accomodates do at least there is genuine issue of material fact they cover the waterfront of everything but pregnancy but our position is those three broad classes by themselves even if there are some conditions out there that they don't cover -- >> i think that is necessary starting point for your case. seems to me that you started out by really giving a a misimpression. >> your honor i would submit that is not right. i would submit that on this summary judgment record ups acknowledges that they provide accommodations to people with on the job injuries but also the but also the summary judgment record that ups provides accomodations to drivers with off the job injuries that result in dot disqualification. ups has not pointed to a single driver with a similar lifting restriction to my client peggy young who did not get accommodated and was pregnant. >> let's accept that for argument sake there is category people are injured off-duty who
do not get light work assignments. so you pointed to three large categories that do but let's suppose one category doesn't. >> yes. so in that case our position would be as the plain text of the statute demands that the employer would be required to treat the pregnant plaintiff the same as those classes of employees who get accommodation -- >> most favored nations treatment. it doesn't have to be read that way. it could be read that way and it could also mean that if you give it to employees generally you have to give it to pregnant employees. although there may be special classes. i think one of the example about, you know, if have your, your senior employees driven to work when, when they are unable to drive themselves, you have to do the same for pregnant women would you say that is the case?
>> no. we would not say that. >> why not? >> we would not say that that our position that the statutory text requires that employers provide workers who are disabled by pregnancy the same treatment they would receive if they themselves had a similar had a condition with similar effect on ability to work but had a different source. so what the statute prohibits is discrimination based on source of the work place limitation not based on senority, not based on position within the company. >> you have -- >> justice breyer. >> we have a brief as you've seen it from the truck drivers and they say they, they give many many of these benefits to anybody. suppose they do give a benefit to a truck driver who has driven over a particularly difficult mountain pass or gotten himself in some danger. now the harm or disability is lifting precisely the same. it is just that the source was different.
you see this came from taking a some truck that, doing something special with it and again it is kind of most favored nation problem. i don't know that source gets you out of it. what do you say about that? >> sir, i think as to that the important point is that is an example of what may be idiosyncratic decision by a employer to provide particular position to a particular employee. >> i don't know that it is idiosyncratic. i can't imagine employers have all kinds of different rules for different kinds of jobs. are you saying as long as there is one job in respect to which let's say they give them benefits of a thousand dollars a week when you're hurt on this job, but not on others? and you have to give them to all pregnant women who hold different jobs. i think the answer to that must be know but the problem for that
and for you is how do you distinguish your situation from that? >> right. and i think actually what justice scalia's question to me a minute ago actually contains the seeds to the answer to. that so it seems to me i might agree that an employer provides a particularly good deal to a single non-pregnant employee -- >> not a single. there is a class of people. >> right. so when you have an employer that provides to a large class to its employees generally, to many of its employees this accommodated work treatment -- >> i see that now sound the other question i have, and it is the only other one it did seem to me there is a way given your theory it is quite easy way for you to win and that would be to bring a disparate impact claim and that's what i thought disparate impact claims were about. you didn't bring the disparate i
am mack claim and -- impact claim because therefore what am i to do? i don't know that what that you want to treat the disparate intent claim out of shape when you have such a beautiful vehicle to bring a claim of a kind you just articulated. >> i think the vehicle to bring the claim is the kind i arctic lated the second clause of the pda the second clause of the pda women affected by preg tan sy childbirth and related conditions shall be treated as persons the same or similarly affected as their ability or inability to work. >> you read that as accommodation provision and maybe it is but let me ask you this question. it goes to the issue of whether the types of accommodations that you would say are required have to meet some reasonableness standard. let's say there are two categories of employees who have lifts restrictions in their job descriptions. one consists of people who work alone and they lift all the
time. a driver who is driving a truck by herself and has to lift heavy packages all the time fall into that category. the second category would consist of people who lift more occasionally and they do it in a place where there will always be lots of other employees in the same class available to do the lifting. now if an accommodation is provided to the workers in the second category, would you say that one must also be provided to workers in the first? >> number i don't think so. our point is precisely a driver who is pregnant, and who has limitations receipted to her pregnancy is entitled to same accommodation her employer would have given her if she sought it for the similar medical condition with the same effect. >> why doesn't that second class fit within your reading of the statutory text? >> well so because in our view the statutory text by saying, by drawing this distinction between employees affected by pregnancy
and childbirth and relate medical conditions and not so affected saving employers can't draw that distinction, skew me and instead only look at ability to work what it does it prohibits discrimination based on the source of disabling condition. it doesn't prohibit discrimination based on difficult job classifications. if you have a driver, if you have an employer says no driver drives alone will get accommodation whether on the job injury, d.o.t. qualifying injury or pregnancy that's fine because it is same treatment. justice alito we do not read this statute as independent reasonable accommodation. >> i guess i'm not quite understanding why you can get the source classifications into a different category from all other classifications. so explain that to me. >> i think it goes to the statutory text. i mean the statutory text says, women affected by pregnant sir childbirth or related medical conditions shall be treated same et cetera as other persons not so affected in their ability to work. what that text is saying to an
employer don't consider whether this person is affected by pregnancy effected or not so effected that is not basis you compare this employee to other employees. compare this employee on based on ability to work. this was in generals to general electric v. gilbert which upheld employer policy distinguished based on the source of the disabling condition. treated some kinds of disabling conditions differently than pregnancy related disabling conditions. >> you have admitted that other persons can not be read literally. you have to reed things things into. you would read people into it the people in the same job classification but if you can do that then why can't you also read into it people whose injuries or disabilities have the same source? >> because once you do that then the second clause of the pda doesn't occupy any space. then congress should have stopped with the first clause. congress was doing something with the second clause. it was trying to overturn the gilbert situation where you had
an employer that adopted a policy that as a formal matter treated pregnant people the same way it treated non-pregnant people. if you were pregnant and but reap you weren't able to work was off the job illness or injury the general electric policy in gilbert would have given you disability benefits. what this court said in the gilbert case. that is not discrimination. it simply doesn't include coverage for pregnancy but pregnant women are not fenced off. what this statutory text does it says employers have to treat pregnantly related conditions as favorably as they treat non-pregnantly-related conditions. that is how the court read the state since the first pda case. in newport news this is discriminatory to treat pregnantly-related conditions less favorably than other related conditions. it provides accomodations to who are not pregnant is treating pregnancy-related conditions less favorably than others. >> you do assert, it's a most
favored nation provision. tough give the benefits that you give to any other class of employees, right? >> to any other class of employees. i think -- >> it doesn't matter whether that class is enormous or small right? >> so i think this is text that obviously requires some degree of interpretation. i think, your honor articulated one way of thinking about it which is providing this accommodation or benefit to employees generally. and certainly when an employer provide accomodations or benefits to such large classes of employees who are not pregnant for purpose of disability -- >> does the record show what you have asserted here, that the classes that are given special treatment is almost everybody? >> well i think that we have -- >> does the record show that? >> i think the record is sufficient to show that remember summary judgment was granted against us. >> i understand. >> yes so i think the record is sufficient to show in the following sense. so number one obviously there is all the on the job injuries
which ups acknowledges they provide accommodation for. number two the d.o.t. disqualifying conditions that ups provide accommodated work for we have presented examples in the record of individuals who have off the job injuries who are similar in their ability to work as peggy young who have been given a accommodated work and ups has not pointed to in its previousing here any driver with a similar lifting restricts to peggy young who was not pregnant who didn't get -- >> you can with your case with that argument. perhaps. >> so. >> assume that but that isn't going to help me which i'm rather selfish about. because my job here is to write what this statute means for a lot of cases and writing the words, what it means is, if you give a lot of benefits to a lot of employees but not to the pregnant women and you don't give it to some employees and not to the pregnant women and
the employer says, look, pregnant women are like the few we don't give it to, not to the lot we do give it to, employer, you lose. by the time aye written that into the u.s. code nobody knows what i'm talking about. i need to know how to interpret the words such that they would do, in your view what you want them to do. which is, just what i said. >> so and i think the important point is, if an employer provide accomodations as a matter of policy to a class of employees who are not pregnant who are similar in their ability or inability to work to the pregnant plaintiff and does not provide the same accommodation to the pregnant plaintiff it is violating the plain text of the statute which says that women affected -- >> most favored nation. you're coming down to most favored nation. that makes sense and that is easy for my colleague to describe. he can write that down in his opinion. >> but unfortunately takes out
of what he just said that the fact that you give them to a lot of employees because you could have a most favored nation that was two employees. >> that's right. >> including those only worked there for four years. huge senority. so those are the words that i'm -- >> i understand. and i understand. that's why i think this may be easier case than the one -- >> what you're saying if i understand it is, it is okay to differentiate on the basis of anything but source which means whether it is work or non-work-related? that's, you're reading out of the, just say the history the fact that congress repeatedly said we're not forcing employers to give benefits for non-work-related injuries but we're going to right write it so they have to anyway. >> i don't think there is any statement in the legislative history that says we're not forcing employers not to give benefits for work-related injuries. there are three states in the legislative history that respondent draws negative
inference from. >> so relieved. >> respondent draw as negative inference from to say obviously congress didn't mean to do. that but to return to justice scalia's response the text contains no such limitation. on the job and off the job limitations are certainly known to time the congress adopted this statute. in fact general electric v. gilbert involved a policy that contained a off the job distinction although flip side to one this had case. if they for an on the job, off the job distinction it could have said so. if i might reserve the balance of my time. >> certainly. >> thank you. >> general virilely. >> chief justice the point of
the pregnancy discrimination act those forced to go months without a income as a result of becoming pregnant. the second clause of the pda advances that interest in narrow and important way. i say the second clause is narrow because it is not free standing accommodation requirement like religious provision of title vii or like the ada i say it is narrow because there is only one thing an employer can't do when it affords benefits or a accommodations. it can't draw distinctions that treat pregnantly-related medical conditions worse than other conditions with comparable effects on ability to work. >> the position the government took in the u.s. postal service policy, we are told that the government defended a policy that for all intents and purposes the same as the united parcel service and more than that some brief called petitioners position frivolous
contrived? that was the government's position, so will you explain how the government, i suppose to this day, because the postal service still retains, as far as we know the exclusion of pregnant women. >> of course, justice ginsburg. it is correct that the department of justice defended the postal service practices against charges like those that miss young makes in this case, that's correct. we acknowledge that and in footnote two of our brief to this court. the, since then however the eeoc has issued guidance and that's a very significant fact. congress has charged the eeoc with authority to interpret the statute and with authority to enforce it. >> i thought we held that we don't give difference to the eeoc. >> you don't give chevron deference to the eeoc but the government has interests -- >> come on. so what do you call the other kind of deference?
i mean, gee you give that to me even when i'm in dissent. that means, treat it for what it's worth. >> the eeo consider sets enforcement policy for the federal sector with respect to this issue. that is a significant fact. we took it into consideration in deciding what the position of the united states should be. >> would your position here be the same if the 2014 guideline had not been adopted? >> we didn't take that position before the 2014 guideline had been adopted justice kennedy. i don't know how to answer that question because we took the position in light of the guidance adopted in 2014 which we do consider to be significant and we do have to weigh our interests as enforcer of the law as well as the employer. we did so on considered basis and we came to the judgment we thought was the correspondent judgment on the meaning of statute. >> we don't give you anymore deference than we give to the eeoc right? >> with respect to this i think the court has to decide what the
best reading is. >> best reading regardless what you -- >> right, if i could turn to that and hopefully in doing so answer your question, justice alito and yours justice kagan. this is why, might help if i restated what the rule is and explain where the textual basis comes from. we have think the one thing an employer can't do as a result of the second clause to draw distinctions that treat pregnant lip-related million conditions worse than other conditions with comparable effects on ability to work. it is that single thing. and so senority, full-time work, different job classifications all of those things would be permissible distinctions for an employer to make to differentiate among mo gets benefits. for the textual basis i'm looking at statute here which is we've got it page 12 and 13 of our brief and also in the last page of the appendix to the petition. it says, that what it says is that among the class of people who are comparable in their
ability to work, in other words similar in their ability or inability to work as the statute says, women with a pregnancy-related million condition, in other words, women affected by pregnant sir childbirth or related medical condition as the statute says, can't be treated worse on the basis of their condition. that is what we think treated the sail means in the statute. than other workers with non-pregnantly-related million conditions that impose comparable limitations. those are other persons not so affected. >> give me your interpretation again. you altered the phrase, the same and the words you added were? >> on basis of their condition. and reason we think that's the sensible and best reading of statutory text is because this is focused on the condition and not the person. >> but you start you got at the very beginning you listed three things that you said were reasonable distinctions because the word i'd like you to focus
on is, other workers and the problem is, which other workers because it is easy to construct hypothetical cases where the work employer treats some other workers the same as the statute and doesn't others and which distinctions are reasonable and which ones are not and how do we tell? >> like to make two points in response justice buyer. the first about the nature of title vii claim and second about the nature of this type of antidiscrimination provision. with respect to the first it is helpful to differentiate between a direct claim of discrimination and disparate treatment versus a claim proven through the mcdonnell douglas framework. with a to prove a direct claim without the mcdonnell douglas burden shifting analysis, you have to show an employer offers
accommodation to significant class of employees and that accommodation fails the test i described earlier. got to be a significant class. we think this case, that will be most cases but in the kind of examples that your honor identified, one guy driving across the mountain for example, i think you have two issues there. first, when it is one person, you're not going to be able to make a direct case. you go through mcdonnell douglas and the employer may well have a explanation for that dom mowcation that would -- accommodation that would take it outside the source of disability limitation and mean there is no liability. and then with respect to that example there is a second point to be made i think which is that person who has to drive the particularly dangerous route for example may well be in a different job category and therefore not similar in ability or -- >> i would have thought those types of cases present the starkest example of discrimination on the basis of pregnancy, i had yo sin democratic one oh, he is doing this yes, but he is doing that and pregnant comes in and says, that is the no the same thing.
i thought maybe it is sort of isolated examples that would be particularly glaring in their discriminatory features? >> mr. justice, i guess what i could say about that you could bring an mcdonnell douglas claim of idiosyncratic difference but if employer could show accommodation was granted to one not based on the criterion that the sentence in the pda would forbid then the accommodation is fine, there is no violation. to get back to the point -- >> that's, i use the idiosyncratic example not because i'm interested in it because i think it illustrates something that isn't idiosyncratic and what i use it to illustrate is the fact that as here employers will have the classes of people and the classes may be based on all kind of different things but this is a case where there are classes. and some get the benefits equivalent to the pregnancy and some don't.
and how are we supposed to tell which are the criteria that are consistent with the statute and which are not? that's what i found as the difficulty question in the case. and that's why i asked it, using the idiosyncratic simply to illustrate what i think is the problem. >> yes of course. let me get to the second point i wanted to make in response to your question. then i will try after i do that to give you a very specific response to what you just asked me. the second point it is true that some classes are going to be in and some classes are going to be out but that's how discrimination law operates. if an employer is is discriminating against women in promotions the fact that the employer is also discriminating against overweight men in promotions doesn't make the discrimination against women any less actionable because it reflects the choice congress made whom to protect and whom not to protect. here the choice congress made about whom to protect and whom not to protect is the choice to
protect women who have conditions pregnantly-related medical conditions. that is the congressional judgment here. they didn't choose to protect everybody who gets injured off the job. they chose to protect those with pregnantly related -- >> suppose the employer has a rule if you have a disability outside of employment, give you benefits for one month and it applies that same policy to the pregnant woman. is that a violation of the statute? >> no i think the pregnant woman would be entitled to one month but nothing more. >> nothing more. >> that's correct. >> why isn't that discrimination on the basis -- >> the statute requires women to be treated same. the pregnant employee would be treated same under those circumstances. >> but not if there is separate category of people entitled to benefits for more than one month. >> question would be whether those benefits, whether the distinction, whether the disentitlement of pregnant employee was based on the source
of her condition. namely pregnancy. fit is based on something else like senority or full-time status of course --. . will never qualify under that standard but in this case is not just about on the job versus off the job. it's plus the dot certification category which can include people who lose their dot certification intent of as a result of physical conditions other than pregnancy that prevent them from doing the job they have to do which includes lifting and the dot manual which
the petitioner petitioner cites pages six and seven says exactly that. thank you. >> thank you general. ms. halligan. >> mr. chief justice, and it please the court. justice breyer, you're exactly correct. had petitioner believed that the policy that ups applied which was to provide accommodations to employees who were injured on the job but not to provide accommodations to any employees who sustained a condition in guard off the job she could have brought a disparate impact claim. we believe she would not have succeeded but she could have energy to do. she attempted to bring went late into day. it was dismissed because it not been exhausted. >> can we talk about the claim that she did bring? >> yes. >> so. >> so your reading of the statute basically makes everything after the; completely superfluous. i think he would agree with that, wouldn't you? >> absolute and not your honor. the reading we proposed a
straightforward. what congress said in the second cause, the keywords are the same as other persons. what other means instantly distinct from whatever is mentioned first. so employers have to treat pregnant employees the same as some distinct group of nonpregnant employees that are simmered in their ability or inability to work and that's exactly what ups is policy is. >> that's what the first provision does. when this is pregnancy is the same as sex, when we say because of sex we also say because of pregnancy, all of that would be taken care of by that clause spent this court explained in newport news as well as in tion of the second cause of to explain that title vii principles applied pregnancy. spent you're saying is not doing anything new. it's only explain the old stuff. tell me why that's necessary. >> i'm not saying that. what i'm saying is that any pregnancy discrimination case, instead of comparing women with men as you would in a typical
sex discrimination case because what the first clause does is bold pregnancy onto sexist commission. so if you compare women and men and the pregnancy discrimination case where you have a policy that basically discriminates against pregnancy, you will nonetheless conclude there is not sex discrimination because there will be women who are pregnant and the disfavored group that there will be women who are not pregnant in the favorite group along with men. >> again that's not necessary because all that the inquiry would be is where you discriminate against because you were pregnant? yes, i was. no, i wasn't. you don't need any of this other stuff about what the comparative class is. you were creating a kind of double redundancy. it's everything past the semicolon is redundant but the key word here which is other persons not so affected but similar in their ability or inability to work that becomes
redundant even within the redundancy. >> to respond to the last first and then to the first. what petitioner's interpretation and the government's interpretation would do would actually be to rewrite those words in one of two ways. initially petitioner seem to be suggesting that if a plaintiff could identify any other single employee who was accommodated that a pregnant employee would be entitled to the same accommodation. what that would mean is the statute would have to read the same as any other person. it does not. petitioner and the government are both suggesting that the only restriction that this bars is a restriction based on source. any other restriction, rank, seniority status, outside legal obligations are acceptable but it doesn't do any of those words either. >> that is the question that this language raises, right? which is why so worse but why not a seniority limitation or something like that? could aikido an alternative way
to understand what the statute is doing? what we ought to be think about is mcdonnell douglas. in other words, this provides the comparator. it says an employee can find a class of people who are being given an accommodation not withstanding that those people are similarly situated with respect to work. and employ points to that class. been in a typical mcdonnell douglas fashion, the employer comes back and says no, that is a good reason why i'm treating that class differently that has nothing to do with the pregnancy. it has something to do with i always treat more senior employees differently or something like that. if the employer makes his case the employee gets to come back and say, no that is a pretext, and just the way we do with every other discrimination case. that's what this is all about. it's identifying the comparator
that the employer test identified in the first instance in order to shift the burden to the government to come back with a reason. >> i think the second clause is highly relevant to the question of competitors i'm not in the way you are suggesting. what the second clause does as this court has laid out in newport news and in calfed is to explain when you're making those comparisons that you don't look at women and men which is what you might do as this court did in gilbert because it's sexist commission that your actual classified -- >> that's the first clause. instead of talking an abstract can you give me any example of the case that a plaintiff would lose under the first clause that puts pregnancy together with sex? >> i'm not sure that you could but that wasn't the function of the second clause. >> you are saying second clause adds nothing even though congress said and. there is one clause because of
sex, includes pregnancy, and something in addition. but you're saying it's not really in addition. >> i think that grammatical connect is very important in understanding of the two clauses relate for the falling reason. occasions construction would read the first clause out of the statute entirely. the words in the first clause are because of the. this court has consistently understood those words across protected traits to require that discrimination in an intentional discrimination case that you have discrimination that is actually motivated by the protected trait. is the second clause does the work petitioner suggests, even if you define the word source in that works not in the text, it would mean you don't need to show that the protected trait pregnancy, actually motivated the adverse treatment. his construction would read that out of the statute entirely. >> what's wrong with my middleground? is not that mr. bagenstos and
the general ground, because it allows the employer to come back and say i had a legitimate policy based on seniority or even i put a legitimate policy based on the source of the injury. it does put that as a question whatever and employs able to point to a class of people were granted a disability accommodation who are pregnant. >> i just don't think it has any anchor in the words of the statute itself. >> quite the opposite. it basically gives a function for what the keywords of the statute are other persons not so affected but similar in their ability and inability to work. what is that doing? what it does is it points to the comparator that sets off the mcdonnell douglas test, that forces the employer to come back and give a reason for why it is that this ought not to be taken as discrimination against pregnancy. >> i think that this court's been clear that the function of
the second clause is to repudiate that logic which equates, when you look at women and men and have a pregnancy, a policy that discriminate on the basis of pregnancy, you say that's not sexist commission. what that would also reduce to collapse the distinction between disparate treatment and desperate intent. this court has been clear that that is an absolute line. it said so in raytheon. congress track to that distinction in the 1991 1991 civil rights act, and justice stevens in his dissent in gilbert itself which this court said was codifying what it enacted the pregnancy -- >> what if the language after the semicolon were not equipped with a language before the semicolon have effectively overrule gilbert? >> they would have overruled gilbert by bolting pregnancy on but congress speeded would have produced a different result in gilbert? supposed the employer has a policy of providing certain benefits for employees who have an injury or disease but not
pregnancy. >> right. >> you didn't have the language after the semicolon, with the language before the semicolon have required the court to treat pregnant women the same as those who have an illness or an injury? >> i'm not sure that would have. i'm also not sure it would have precluded the court from using the same logic that was at play in gilbert itself, and that's why those words are there. >> isn't that the reason for the language after the semicolon? you have to go further in order to produce a different result than dilbert. could you explain what you think the language after the semicolon means? >> i think the language after the semicolon instructs that when you look at a policy that facially discriminates on the basis of pregnancy, what you did to you in a sexist commission case is to look at how women and men are treated. if they're treated differently you would conclude that their sexist commission. what this clause and structure
look at the positive scrimmage on the basis of pregnancy rather than looking at women and men which will leave you passionately due to the conclusion is no sexist commission because although my pregnant women -- >> that's what the first clause does because of pregnancy and sex, period. you of all reset that you don't think the second clause does any practical work. that is going you can't conceive of a case where plaintiff would lose under clause one and win under clause two. >> to declare the reason the second clause is there is to avoid a case in which a court use at the same reasoning and recent different result of this court act had special significance to the second clause in johnson controls. it's that it provides a bfoq for
pregnancy specific, and so doesn't work as well. that's a distinction that is long-standing and hasn't -- >> but you don't know where -- i like just about on this very point to what justice kagan said. the mcdonnell douglas test should, and somewhere. that is the woman shows that i'm pregnant, i couldn't lift, i wasn't paid anything, and other people had comparable inabilities were paid. and so we get two was i qualified like they are? and now a distinction is being made. the employer says no you're not because you didn't drive over the mountain pass. or no, you're not because you got it off the job. and we have to decide is that a pretext? isn't legitimate? and where they're giving to
everybody else and there are very few come it doesn't sound to legitimate. not that test must come in. >> it does. >> and so how does it and doesn't matter if we put under the first so-called whatever, you know, intentional as opposed to disparate impact? will we muck up the law where we say it goes in that part other than the other part of both parts of? >> this court has been clear that mcdonnell douglas provides a mechanism for providing indirect evidence of disparate treatment of intentional discrimination. so it's distinct from a disparate impact case where you have a facially neutral policy a policy that says on the job gets accommodation when they can't perform the essential functions of their of the job, anyone with an injury or condition that's sustained off the job doesn't. when you have a facially neutral policy like that, you can bring
a disparate impact claim. at the young could have done that. >> but why not if it goes under disparate treatment? because of course the employer will always have a facially neutral policy. it just turns out that this facially neutral policy happens to be the pregnant women and for other people. i mean that's the kind of thing that we're trying to stop in the statute. so why not bring in better, in the disparate treatment part as you say? >> two majors, your honor. >> yes. >> first of all, i think that the station between a disparate impact claim where you're looking at adverse effects on a certain class of employees, but you have a facially neutral policy has been quite, as testing from a policy that discriminates on its face, either directly or indirectly that's well established. >> suppose it's exactly what justice breyer is talking about. suppose you at a policy visit were going to provide
accommodations for anybody with a non-occupational sickness and accident, very similar to gilbert, but without all the other facts of cover. it's official policy. we're going to provide accommodations but, of course pregnancy is not a non-occupational sickness and accident, so as a result of this facially neutral policy, pregnant women will not get accommodations. now, as i understand what you're saying, that's perfectly fine. >> if the policy distinguishes between occupational injuries and non-occupational -- >> yes, this is non-occupational sickness and accident. >> that would be acceptable. what a plaintiff he believed that nonetheless there was intentional discrimination afoot, what did we do is they would, under mcdonnell douglas, they would first of all the attempt to make up prima fascia case by showing that of
employees who are similarly situated were being treated differently. the comparators that the petitioner points to hear are not valid because they are not similar situated. >> you are departing radically from what the fourth circuit view in this, the fourth circuit did say right up front that this clause standing alone is unambiguous. if a group of employees get the benefit, if other employees get the benefit, so must pregnant women. the fourth circuit said that's what it says just standing alone, but because it would lead to untoward results, preferential treatment, we're not going to give it that meaning. >> the fourth circuit realize that the two clauses have to be read together. and the factory the second clause, just reads the first clause out of existence. justice kagan, back to your question, what an employee could do in that circumstance is to say, a policy doesn't treat
similar situated employees the same as me. it treats me worse. the comparators here were not all congruous. the first set of compared to individuals who were accommodated under the ada. the government realizes that they are not similar. similar. >> that's where we disagree because what this tells you is to tell you what the comparators are. the comparators are an eclectic and come up with who has the same disability and isn't pregnant, and then the employer can come back and say know we had good reason to treat that class of employees differently. and if you buy that with respect to the gilbert distinction, i don't understand why you wouldn't buy it with respect to any other classification. >> because all the second clause is telling you, and congress was clear and this court was clear that the pda both clauses in its entirety were not intended to in anyway depart from
traditional title vii principles. it was simply to correct the fact that pregnancy could be sex discrimination. >> we out so we know that what gilbert said was that kind policy was legitimate and that congress can back and said no that kind of policy is illegitimate. >> it said is illegitimate in the first clause and is said you cannot when you're trying to ascertain if their sex discrimination with a pregnancy policy, break it down into women and men because you won't get the result congress wants. congress is when it's facially discriminatory on the basis of pregnancy, that's sex discrimination. the comparators to have to be different. it's pregnant employees and nonpregnant employees. as i understand after to my question and tell me if i'm wrong, is using with respect to a facially neutral policy as the non-occupational sickness and health, that you think that that is illegal under the pda. >> no. it's legal under the pda.
a policy that distinguishes between occupational and non-occupational injuries and is evenly applied is absolutely permissible under the pda. >> even if, it's exactly the policy that's until become and you're saying that's on? >> no. a policy and gilbert singled a pregnancy for the favor. >> it didn't. there were lots of other things except for pregnancy that got excluded and gilbert. if a man had a vasectomy it got excluded into were. if somebody got into a bar fight he got excluded under under the policy until there. if the person had cosmetic surgery, got excluded under the policy into. dilbert was about much more than singling out. >> this court and congress clearly describe the policy and gilbert as singling out pregnancy and that's what congress enacted the pda. >> it and acted it to overturn gilbert, everybody -- >> not just some abstract to rebut the result in gilbert. and as justice kagan pointed out, gilbert was a case where good point to a lot of other
people who were not getting this benefit. >> the result that petitioner and the government suggests which is instead to you say that you can have any distinction you want and it's permissible under the pda except on the job versus off the job is far more contorted. that's a decision that sounds in workers compensation law. >> is it true essentially, i mean, you said that young's position is most favored nation. yours is least favorite nation, right? >> the question is is there another distinct group of employees who are treated the same as the petitioner, here there are. >> this case went off on summary judgment, so the facts, mr. bagenstos has told us that there is not in this record a single instance of anyone who needed a lifting dispensation who didn't get it except for pregnant people. and if that's the case in fact
then you lose don't you? >> i would like to address the because i think that's a real mischaracterization of the record in a couple of ways. first of all the district court held squarely, that the effort by planet to characterize this policy as no light-duty for pregnancy was wrong. what the district court said, this is on page 59a, that the after post was on the java ada accommodations and beauty. >> this is an allegation that in fact, no one wanted a dispensation didn't get it except pregnant women spent that is also contradicted, your honor. >> we are on the summary judgment stage so we don't know what the facts are. >> no, but we have to look at the uncontroverted evidence. i would point you to ms. martin and mr. bryant's testimony that there were many employees who sustained off the job injuries and district court held specifically that no light-duty was given to any employees male
or female, with any medical conditions not related to work pregnancy included. >> can you give an example them? is there an employer asked for a dispensation because of the medical condition that restricted her ability to left, to any single employee employed -- sorry, you don't get it because your injury was off duty? >> there's not a name provided in the record because one was not elicited by the petitioner whose burden and was in building a prima fascia case. but the record evidence is undisputed that there were many employees who sustained off the job injuries and it's not surprising that ups is in the business of delivering packages. >> they suffered off the job injuries, but we don't know if the asked for a dispossession -- dispensation because the off the job injury would require that they limit the weight that they would bear.
>> the district court held that ups's policy is that employees were unable to perform the essential functions of the job would be required to take leave it there in italy stemmed from something of a job. in a business that involves moving 70-pound packages run all day long, it is the case that as the uncontroverted test with established door many employees who sustained an off the job injury that prevented him from doing that job. >> i assume that you disagree with the petitioners proposition that when you take these three classes, namely, off the job -- i'm sorry on the job injuries, ada injuries, and -- what was the third one? >> traffic certificates. yes, yes getting disapproved as drivers by dod. there's almost nothing left. >> we have to be agreed -- disagree with that and there's nothing in the record which suggests that.
it is completely without citation or support and it's completely controverted by the testimony that there were many employees they did sustain an off the job injury. so there were three narrow exceptions absolutely, the three you identified, and every employee that sustained about the job injury pulled them back turned their knee, whatever it is, couldn't come into work, were not accommodated with the kind of light-duty that ms. young was spent so why shouldn't there be a trial on that for further proceedings? if it turns out that they are right that there were four people who weren't pregnant and that's all, but didn't get the benefits, that's pretty strong evidence that the employer is discriminating. if there were 400,000 people who got the thing off the job and there were only like 19 people on the java got the benefit, then you have a better case. why do we have to look at the facts? >> first of all you're kind of, that would be relevant to a
disparate impact in which the petitioner did not bring. there was extensive discovery in this case. there was a summary judgment granted with uncontroverted evidence that establishes exactly the opposite of what you're suggesting, so there's no need to do that. this is a very straightforward case and but for the effort by the petitioner to bring the record back into play at this late date, none of this would be something that you would ever consider at this point. >> is there really a dispute about this? maybe petitioner's counsel could address it in rebuttal but it is there a dispute that if a ups driver felt off his all-terrain vehicle on the weekend and was unable to lift that that person would not be given light-duty? >> there's no dispute at all and the this court made a square finding exactly to that effect on page 56a and 35a. i would address you to page five
where we set forth ms. marks desperate that she never authorize and accommodation for anyone who's into off the job, so that's there as well. i'd like to turn brief if i can to the question of the peos the guidance that the solicitor general -- >> but there are individuals who were injured off the job lose their beauty licenses spent the our individual is their duty certification and pursuant to the collective bargaining agreement their accommodated for some period of time. but those jobs are individual is there due to certification are not light-duty jobs. those are heavy lifting jobs as the district court squarely held. the district court at page 36 and 59 said inside jobs are not light-duty jobs and individuals who lose their license can perform any number of demanding physical tasks which ms. young could not perform. they are not comparable in that regard either. with respect to the eeoc
guidance, the guidance which was issued two weeks after this court granted certiorari is 180-degree change from the position that the government has consistently taken and that the postal service, which ups fairly look to and trying to ascertain what appropriate conduct was under federal anti-discrimination laws, the policy that it still has in place today. in addition the process in issuing that guidance was incredibly rushed. it was not until 2012 as one of the amicus briefs point out that the eeoc even identified the question of pregnancy accommodations as an emerging or developing issue. there was no notice and comment. >> the original guideline, as i understand the eeoc what they did in 2014, they said we were terse the first time around. all we are doing in 2014 is explaining what the original what was common with 79, the
original -- >> the 79 guideline seven of the language of the statue. in 2012 the eeoc said it was looking at addressing that very issue that it opined on in the 2014 guidance as emerging. is a 1979 guidelines stood for what petitioner suggests, there would've been no need to treat it as emerging. it would've been settled 30 years ago. finally, i want to point out that this is an area where the democratic process is working as it should and as this court instructed it should in calfed. in calfed, this court looked at the question of whether or not state statutes would provide preferential treatment to pregnant employers, the statute there provided extra leave and reinstatement rights to pregnant employers, was preempted by the pda. the court said the pda sets a floor. that floor is that you can't single of pregnancy for adverse treatment. states can go beyond that as
additional and new challenges are identified. >> for the democratic process to work as it should, the pda has to be given a fair reading. what we know about the pda is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. it was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. what you're saying is there's a policy that accommodates some workers, but that's all pregnant women on one side of the line. what you are further saying is that the employer doesn't have to justify that policy à la mcdonnell douglas. it seems to me a reading of the statute, the pda that ignores two-thirds of the tax. >> i'm not saying that the employer is a subject to suit under mcdonnell douglas but i think there are no valid competitors here. all that we are saying -- that's all that we are saying in that