State of Ohio v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2023 Decided April 9, 2024

No. 22-1081

STATE OF OHIO, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S.

REGAN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE

U.S. ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

ADVANCED ENERGY UNITED, ET AL.,

INTERVENORS

Consolidated with 22-1083, 22-1084, 22-1085

On Petitions for Review of a Final Action

of the Environmental Protection Agency

Jeffrey B. Wall argued the causes for Fuel Petitioners.

With him on the briefs were Eric D. McArthur, Morgan L.

Ratner, C. Boyden Gray, Jonathan Berry, Michael B.

Buschbacher, Matthew W. Morrison, and Brittany M.

2

Pemberton. Shelby L. Dyl and Samara L. Kline entered

appearances.

Benjamin M. Flowers, Solicitor General, Office of the

Attorney General for the State of Ohio, argued the causes for

State Petitioners. With him on the briefs were Dave Yost,

Attorney General, Sylvia May Mailman, Deputy Solicitor

General, Steve Marshall, Attorney General, Office of the

Attorney General for the State of Alabama, Edmund G. Lacour

Jr., Solicitor General, Tim Griffin, Attorney General, Office of

the Attorney General for the State of Arkansas, Nicholas J.

Bronni, Solicitor General, Christopher M. Carr, Attorney

General, Office of the Attorney General for the State of

Georgia, Stephen J. Petrany, Solicitor General, Theodore E.

Rokita, Attorney General, Office of the Attorney General for

the State of Indiana, Thomas M. Fisher, Solicitor General, at

the time the brief was filed, Daniel Cameron, Attorney

General, Office of the Attorney General for the State of

Kentucky, Matthew F. Kuhn, Solicitor General, Kris Kobach,

Attorney General, Office of the Attorney General for the State

of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General,

Anthony J. Powell, Solicitor General, Jeff Landry, Attorney

General, Office of the Attorney General for the State of

Louisiana, Elizabeth B. Murrill, Solicitor General, J. Scott St.

John, Deputy Solicitor General, Lynn Fitch, Attorney General,

Office of the Attorney General for the State of Mississippi,

Justin L. Matheny, Deputy Solicitor General, Austin Knudsen,

Attorney General, Office of the Attorney General for the State

of Montana, Christian Brian Corrigan, Solicitor General,

Kathleen L. Smithgall, Assistant Solicitor General, Andrew

Bailey, Attorney General, Office of the Attorney General for

the State of Missouri, D. John Sauer, Solicitor General, Jeff P.

Johnson, Deputy Solicitor General, Mike Hilgers, Attorney

General, Office of the Attorney General for the State of

Nebraska, James A. Campbell, Solicitor General, Justin D.

3

Lavene, Assistant Attorney General, Gentner Drummond,

Attorney General, Office of the Attorney General for the State

of Oklahoma, Bryan Cleveland, Deputy Solicitor General, Ken

Paxton, Attorney General, Office of the Attorney General for

the State of Texas, Judd E. Stone II, Solicitor General, Ryan S.

Baasch, Assistant Solicitor General, Katie B. Hobson,

Assistant Attorney General, Alan Wilson, Attorney General,

Office of the Attorney General for the State of South Carolina,

James Emory Smith, Jr., Deputy Solicitor General, Sean Reyes,

Attorney General, Office of the Attorney General for the State

of Utah, Melissa A. Holyoak, Solicitor General, Patrick

Morrisey, Attorney General, Office of the Attorney General for

the State of West Virginia, Lindsay S. See, Solicitor General,

and Michael R. Williams, Senior Deputy Solicitor General.

James A. Barta, Deputy Solicitor General, Office of the

Attorney General for the State of Indiana, Christian B.

Corrigan, Solicitor General, Office of the Attorney General for

the State of Montana, Eric Hamilton, Solicitor General, Office

of the Attorney General for the State of Nebraska, and Mathura

Sridharan, Deputy Solicitor General, Office of the Attorney

General for the State of Ohio, entered appearances.

Theodore Hadzi-Antich and Robert Henneke were on the

brief for amicus curiae Western States Trucking Association,

Inc. in support of State Petitioners.

Riddhi Dasgupta was on the brief for amici curiae

American Commitment, et al. in support of petitioners.

Dale Stern and Patrick Veasy were on the brief for amici

curiae California Business Roundtable and California

Manufacturers & Technology Association in support of

petitioners.

Scott A. Keller and Michael B. Schon were on the brief for

4

amici curiae Western States Petroleum Association, et al. in

support of petitioners.

Rafe Petersen was on the brief for amicus curiae The Two

Hundred for Housing Equity in support of petitioners.

James K. Vines was on the brief for amici curiae Texas Oil

& Gas Association, et al. in support of petitioners.

Paul D. Cullen, Jr. and Kathleen B. Havener were on the

brief for amicus curiae Owner-Operator Independent Drivers

Association, Inc. in support of petitioners.

Eric P. Gotting and Peter L. de la Cruz were on the brief

for amicus curiae The Sulpher Institute in support of

petitioners.

John A. Sheehan was on the brief for amicus curiae

ConservAmerica in support of petitioners.

Chloe H. Kolman and Eric G. Hostetler, Attorneys, U.S.

Department of Justice, argued the causes for respondent. With

them on the brief were Todd Kim, Assistant Attorney General,

and Elisabeth H. Carter, Attorney.

M. Elaine Meckenstock, Deputy Attorney General, Office

of the Attorney General for the State of California, argued the

causes for State and Local Government respondent-

intervenors. With her on the brief were Rob Bonta, Attorney

General, Robert W. Byrne, Senior Assistant Attorney General,

Gary E. Tavetian, Supervising Deputy Attorney General,

Jessica Barclay-Strobel, Kristin McCarthy, Theodore A. B.

McCombs, Caitlan McLoon, and Jonathan Wiener, Deputy

Attorneys General, Philip J. Weiser, Attorney General, Office

of the Attorney General for the State of Colorado, Scott

5

Steinbrecher, Acting Deputy Attorney General, Kathleen

Jennings, Attorney General, Office of the Attorney General for

the State of Delaware, Christian Douglas Wright, Director of

Impact Litigation, William Tong, Attorney General, Office of

the Attorney General for the State of Connecticut, Matthew I.

Levine, Deputy Associate Attorney General, Scott N.

Koschwitz, Assistant Attorney General, Anne E. Lopez,

Attorney General, Office of the Attorney General for the State

of Hawaii, Lyle T. Leonard, Deputy Attorney General, Kwame

Raoul, Attorney General, Office of the Attorney General for

the State of Illinois, Matthew J. Dunn, Chief, Environmental

Enforcement/Asbestos Litigation Division, Elizabeth Dubats,

Assistant Attorney General, Aaron M. Frey, Attorney General,

Office of the Attorney General for the State of Maine, Emma

Akrawi, Assistant Attorney General, Anthony G. Brown,

Attorney General, Office of the Attorney General for the State

of Maryland, Cynthia M. Weisz, Assistant Attorney General,

Joshua M. Segal, Special Assistant Attorney General, Keith

Ellison, Attorney General, Office of the Attorney General for

the State of Minnesota, Peter N. Surdo, Special Assistant

Attorney General, Aaron D. Ford, Attorney General, Office of

the Attorney General for the State of Nevada, Heidi Parry

Stern, Solicitor General, Daniel P. Nubel, Senior Deputy

Attorney General, Matthew J. Platkin, Attorney General,

Office of the Attorney General for the State of New Jersey, Lisa

J. Morelli, Deputy Attorney General, Raul Torrez, Attorney

General, Office of the Attorney General for the State of New

Mexico, Bill Grantham, Assistant Attorney General, Letitia

James, Attorney General, Office of the Attorney General for

the State of New York, Judith N. Vale, Deputy Solicitor

General, Yueh-Ru Chu, Chief, Affirmative Litigation Section,

Environmental Protection Bureau, Gavin G. McCabe,

Assistant Attorney General, Joshua H. Stein, Attorney General,

Office of the Attorney General for the State of North Carolina,

Asher P. Spiller, Special Deputy Attorney General, Ellen F.

6

Rosenblum, Attorney General, Office of the Attorney General

for the State of Oregon, Paul Garrahan, Attorney-in-Charge,

Steve Novick, Special Assistant Attorney General, Charity R.

Clark, Attorney General, Office of the Attorney General for the

State of Vermont, Nicholas F. Persampieri, Assistant Attorney

General, Peter F. Neronha, Attorney General, Office of the

Attorney General for the State of Rhode Island, Nicholas M.

Vaz, Special Assistant Attorney General, Robert W. Ferguson,

Attorney General, Office of the Attorney General for the State

of Washington, Christopher H. Reitz, Assistant Attorney

General, Andrea Joy Campbell, Attorney General, Office of the

Attorney General for the Commonwealth of Massachusetts,

Seth Schofield, Senior Appellate Counsel, Matthew Ireland,

Assistant Attorney General, Michelle Henry, Acting Attorney

General, Office of the Attorney General for the

Commonwealth of Pennsylvania, Ann R. Johnston, Senior

Deputy Attorney General, Brian L. Schwalb, Attorney General,

Office of the Attorney General for the District of Columbia,

Caroline S. Van Zile, Solicitor General, Michael J. Bostrom,

and Christopher G. King. Francisco Benzoni, Special Deputy

Attorney General, Office of the Attorney General for the State

of North Carolina, and Michael Fischer, Executive Deputy

General Counsel, entered appearances.

Sean H. Donahue was on the brief for respondent-

intervenors Public Interest Organizations. With him on the

brief were Joanne Spalding, Andrea Issod, Josh Berman, Vera

Pardee, Paul Cort, Vickie L. Patton, Peter Zalzal, Andrew P.

Su, Eric M. Wriston, Jessica Anne Morton, Sarah Goetz, Ian

Fein, David D. Doniger, Emily K. Green, Robert Michaels,

Scott L. Nelson, Scott Hochberg, Jay Duffy, and Ann Brewster

Weeks. Alice Henderson and Sean A. Lev entered appearances.

Stacey L. VanBelleghem, Devin M. O=Connor, Kevin

Poloncarz, Martin Levy, Tim Duncheon, Jonathan S. Martel,

7

Elizabeth S. Theodore, Ethan G. Shenkman, Samuel I. Ferenc,

David M. Lehn, Kenneth J. Markowitz, Pratik A. Shah, and

Steven Croley were on the brief for Industry respondent-

intervenors.

Deborah A. Sivas, Matthew J. Sanders, and Stephanie L.

Safdi were on the brief for amicus curiae California Climate

Scientists in support of respondents.

Cara A. Horowitz was on the brief for amici curiae Senator

Tom Carper, Chairman of the U.S. Senate Committee on

Environment and Public Works, et al. in support of

respondents.

Sara A. Colangelo was on the brief for amici curiae The

American Thoracic Society, et al. in support of respondents.

David R. Baake was on the brief for amici curiae

Administrative Law Professors in support of respondents.

Kevin K. Russell was on the brief for amicus curiae

Professor Leah M. Litman in support of respondents.

Bayron T. Gilchrist, Barbara Baird, Brian Tomasovic, and

Kathryn Roberts were on the brief for amicus curiae South

Coast Air Quality Management District in support of

respondents.

Before: WILKINS, CHILDS, and GARCIA, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: These consolidated petitions for review

concern a 2022 decision by the Environmental Protection

Agency (“EPA”) to reinstate the EPA’s prior decision, in 2013,

8

to waive federal preemption of two California regulations

regarding automobile emissions under the Clean Air Act. The

regulations in question are a standard limiting greenhouse gas

emissions and a requirement that a certain percentage of new

vehicles manufactured in the state each year be zero-emissions

vehicles (“ZEV”), see 13 Cal. Code Regs. §§ 1961.3, 1962.2,

respectively. Two sets of Petitioners challenge the EPA’s

decision. The first group of Petitioners comprises seventeen

states (“State Petitioners”).1 The second group of Petitioners

includes entities that produce or sell liquid fuels and the raw

materials used to produce those fuels, along with associations

whose members include such entities (“Fuel Petitioners”).2

Both State and Fuel Petitioners claim that the EPA was not

authorized to grant California the waiver under the Clean Air

Act. Fuel Petitioners argue that the EPA exceeded its statutory

authority under the Clean Air Act. State Petitioners,

meanwhile, contend that the EPA’s waiver reinstatement

decision was contrary to law because the relevant California

regulations are preempted by a separate federal statute, the

Energy Policy and Conservation Act of 1975 (“EPCA”), 49

1

State Petitioners are the State of Ohio, State of Alabama, State of

Arkansas, State of Georgia, State of Indiana, State of Kansas,

Commonwealth of Kentucky, State of Louisiana, State of

Mississippi, State of Missouri, State of Montana, State of Nebraska,

State of Oklahoma, State of South Carolina, State of Texas, State of

Utah, and State of West Virginia.

2

Fuel Petitioners are American Fuel & Petrochemical

Manufacturers, Clean Fuels Development Coalition, Diamond

Alternative Energy, LLC, Domestic Energy Producers Alliance,

Energy Marketers of America, ICM, Inc., Illinois Corn Growers

Association, Iowa Soybean Association, Kansas Corn Growers

Association, Michigan Corn Growers Association, Minnesota

Soybean Growers Association, Missouri Corn Growers Association,

National Association of Convenience Stores, South Dakota Soybean

Association, and Valero Renewable Fuels Company, LLC.

9

U.S.C. § 32919(a). State Petitioners also claim that by granting

a waiver to California alone, the EPA violated a constitutional

requirement that the federal government treat states equally in

terms of their sovereign authority. We hold that Fuel

Petitioners lack standing to raise their statutory claim, and that

State Petitioners lack standing to raise their preemption claim,

because neither set of Petitioners has demonstrated that their

claimed injuries would be redressed by a favorable decision by

this Court. While we hold that State Petitioners have standing

to raise their constitutional claim, we reject it on the merits.

I.

A.

While the Clean Air Act typically grants states broad

discretion to meet federal air quality goals, emissions standards

for new automobiles are promulgated at the federal level. The

Clean Air Act empowers the EPA to promulgate federal

emissions standards for those vehicles, see 42 U.S.C. § 7521,

and it preempts any corresponding state regulation, expressly

preventing the adoption of emissions standards for new

vehicles and/or engines as follows:

(a) Prohibition

No State or any political subdivision thereof

shall adopt or attempt to enforce any standard

relating to the control of emissions from new

motor vehicles or new motor vehicle engines

subject to this part. No State shall require

certification, inspection, or any other approval

relating to the control of emissions from any

new motor vehicle or new motor vehicle engine

as condition precedent to the initial retail sale,

10

titling (if any), or registration of such motor

vehicle, motor vehicle engine, or equipment.

Id. § 7543(a) (“Section 209(a)”). However, the Clean Air Act

permits the EPA to waive application of Section 209(a) to any

state under certain circumstances:

(b) Waiver

(1) The Administrator shall, after notice and

opportunity for public hearing, waive

application of this section to any State which

has adopted standards (other than crankcase

emission standards) for the control of emissions

from new motor vehicles or new motor vehicle

engines prior to March 30, 1966, if the State

determines that the State standards will be, in

the aggregate, at least as protective of public

health and welfare as applicable Federal

standards. No such waiver shall be granted if

the Administrator finds that—

(A) the determination of the State is arbitrary

and capricious,

(B) such State does not need such State

standards to meet compelling and

extraordinary conditions, or

(C) such State standards and accompanying

enforcement procedures are not consistent

with section 7521(a) of this title.

(2) If each State standard is at least as stringent

as the comparable applicable Federal standard,

such State standard shall be deemed to be at

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least as protective of health and welfare as such

Federal standards for purposes of paragraph (1).

(3) In the case of any new motor vehicle or new

motor vehicle engine to which State standards

apply pursuant to a waiver granted under

paragraph (1), compliance with such State

standards shall be treated as compliance with

applicable Federal standards for purposes of

this subchapter.

Id. § 7543(b) (“Section 209(b)”). California is the only state

that had adopted standards (other than crankcase emission

standards) for the control of emissions from new motor

vehicles or new motor vehicle engines as of March 30, 1966.

See Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1100

n.1 (D.C. Cir. 1979).

If California applies to promulgate automobile emissions

standards that it has determined are at least as protective of

public health and welfare as the existing federal regulations,

the Clean Air Act requires the EPA to waive preemption as to

those regulations, unless certain criteria (the “waiver denial

criteria”) are met. 42 U.S.C. § 7543(b). The EPA may refuse

to grant a waiver only if: (1) California’s “determination . . . is

arbitrary and capricious,” (2) California “does not need such

State standards to meet compelling and extraordinary

conditions,” or (3) the “standards and accompanying

enforcement procedures are not consistent with [42 U.S.C.

§ 7521(a)].” Id. § 7543(b)(1)(A)–(C). In other words, the

federal regulations continue to act as the floor for emissions

regulations, but California can seek to enact its own more

stringent regulatory program above those federal requirements.

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Sections 209(a) and (b) of the Clean Air Act together make

up a statutory compromise between several competing

interests. When Congress enacted the Clean Air Act in 1967,

California suffered from significant air quality and pollution

problems caused by motor vehicle emissions, which federal

emissions regulations were unlikely to adequately address. See

S. Rep. No. 90-403, at 33–34 (1967); H.R. Rep. No. 90-728, at

21–23, 96–97 (1967). California was also the only state with

its own motor vehicle emissions standards, and its leadership

in automobile emissions regulation had been valuable to the

federal government in crafting the Clean Air Act. See S. Rep.

No. 90-403, at 33–34; H.R. Rep. No. 90-728, at 21–23, 96–97.

At the same time, automobile manufacturers were growing

concerned that other states might begin regulating automobile

emissions, subjecting them to a patchwork of regulatory

obligations and significantly increasing manufacturing costs.

See H.R. Rep. No. 90-728, at 21; see also Engine Mfrs. Ass’n

v. EPA, 88 F.3d 1075, 1079 (D.C. Cir. 1996). Congress

enacted Sections 209(a) and (b) to balance the fears of

automobile manufacturers, California’s need for bespoke

regulation, and the federal interest in allowing California to test

new emissions regulations. Section 209(a) addresses the fears

of automakers and ensures national uniformity in automobile

emissions standards by preempting state regulation. See 42

U.S.C. § 7543(a). Meanwhile, Section 209(b) grandfathers in

California’s regulatory program and allows it to continue

innovating new solutions to automobile pollution. See id.

§ 7543(b); see also Engine Mfrs. Ass’n, 88 F.3d at 1080.

B.

The D.C. Circuit is familiar with interpreting the Clean Air

Act. Shortly following the enactment of Section 209(b), the

D.C. Circuit addressed the question of how California should

determine that its regulations are more protective than the

13

federal regulations. See Motor & Equip. Mfrs. Ass’n, 627 F.2d

at 1095. California sought to impose regulations on oxides of

nitrogen that were significantly more stringent than their

federal counterparts. Id. at 1110 n.32. However, due to

technological constraints, emissions control devices could not

be constructed to meet both California’s oxides of nitrogen

standard and a carbon monoxide standard as stringent as the

federal standard. Id. In an effort to impose its high oxides of

nitrogen standard, California proposed a carbon monoxide

standard that was less stringent than the federal carbon

monoxide standard. Id. The EPA allowed California’s

stringent oxides of nitrogen standard to make up for its less

stringent carbon monoxide standard, as long as its regulatory

program as a whole was more protective than the federal

regulations. Id. Dissatisfied with this decision, opponents of

California’s regulations argued that Section 209(b) required

California to show that its carbon monoxide standard was

individually more protective than the federal carbon monoxide

standard. In 1977, Congress resolved this dispute by amending

Section 209(b). The new language of Section 209(b) made

explicit that California need only determine that its standards

are, “in the aggregate, at least as protective of public health and

welfare” as the federal standards. 42 U.S.C. § 7543(b)(1). So

long as California has made that determination, the EPA must

grant California a waiver unless the EPA finds that any of the

waiver denial criteria are met. See id. § 7543(b)(1)(A)–(C).

The amendment ensures that California is not required to

determine that each new proposed regulation is more protective

than its federal counterpart. Id. It was intended to give

California the “broadest discretion in selecting the best means

to protect the health of its citizens and the public welfare.”

H.R. Rep. No. 95-294, at 301–02 (1977).3

3

The 1977 Clean Air Act amendments also empowered other states

to choose between adopting the federal standards or the California

14

After Congress amended Section 209(b) to provide that

California need only determine that its standards were, “in the

aggregate,” at least as protective as the federal standards, the

EPA decided to apply a similar approach to its analysis of

whether California’s proposed standards met any of the waiver

denial criteria. See 42 U.S.C. § 7543(b)(1)(A)–(C). Thus, in

examining whether any of the waiver denial criteria applied,

the EPA considered only whether California’s proposed

standards, in the aggregate, met any of the criteria—not

whether each individual standard could be denied under any of

the criteria. The EPA continued to evaluate California’s waiver

applications under Section 209(b) using this aggregate method

of evaluation for decades. In the fifty-five years since Section

209(b) was originally enacted, the EPA has granted California

seventy-five waivers using the aggregate method of evaluation.

See California State Motor Vehicle Pollution Control

Standards; Advanced Clean Car Program; Reconsideration of

a Previous Withdrawal of a Waiver of Preemption; Notice of

Decision, 87 Fed. Reg. 14337 (Mar. 14, 2022) (“2022 Waiver

Reinstatement Decision”); see also EPA, Vehicle Emissions

California Waivers and Authorizations,

https://perma.cc/5T7U-L8GE (last visited Mar. 27, 2024).

In the 1960s and 1970s, California’s emissions standards

focused on ozone-generating pollutants, like nitrogen oxides,

but over time, California expanded its regulatory program to

restrict a variety of other emissions, such as methane and other

greenhouse gases. See, e.g., California State Motor Vehicle

Pollution Control Standards; Waiver of Federal Preemption,

standards. 42 U.S.C. § 7507. As of the date of this opinion,

seventeen states have chosen to adopt some portion of the California

regulations. See Cal. Air Res. Bd., States that Have Adopted

California’s Vehicle Regulations, https://perma.cc/HCS4-X7NP

(last visited Mar. 27, 2024).

15

43 Fed. Reg. 25729, 25735 (June 14, 1978); California State

Motor Vehicle Pollution Control Standards; Waiver of Federal

Preemption Notice of Decision, 49 Fed. Reg. 18887, 18890

(May 3, 1984). In 1993, the EPA approved a waiver of

California’s first ZEV standard, which required an annually

increasing percentage of vehicles sold in California to produce

zero tailpipe emissions. See California State Motor Vehicle

Pollution Control Standards; Waiver of Federal Preemption;

Decision, 58 Fed. Reg. 4166 (Jan. 13, 1993).

C.

In recent decades, California has continued to face

significant pollution and climate challenges. It contains seven

of the ten worst areas for ozone pollution in the country and six

of the ten worst areas for small particulate matter. See 2022

Waiver Reinstatement Decision, 87 Fed. Reg. at 14377 n.469.

It also faces “increasing risks from record-setting fires, heat

waves, storm surges, sea-level rise, water supply shortages and

extreme heat.” Id. at 14363; see also id. at 14338–39 & nn.37,

43. And these conditions are exacerbated by climate change.

Id. at 14350 & n.165. Moreover, pollution and climate change

have particularly harmful impacts on California due to its large

agriculture and ocean-based economies, dependence on an

over-stressed water supply, long coastlines, and susceptibility

to wildfires. See California State Motor Vehicle Pollution

Control Standards; Notice of Decision Granting a Waiver of

Clean Air Act Preemption for California’s 2009 and

Subsequent Model Year Greenhouse Gas Emission Standards

for New Motor Vehicles, 74 Fed. Reg. 32744, 32746 (July 8,

2009).

To combat these challenges, in 2005, California applied

for a waiver for a new set of regulations limiting greenhouse

gas emissions. See Cal. Air Res. Bd., Low-Emission Vehicle

16

Greenhouse Gas Program, https://perma.cc/VC85-GQ2S (last

visited Mar. 27, 2024). The request sparked disagreement

among several subsequent presidential administrations. Under

President George W. Bush’s Administration, the EPA initially

denied the waiver on the basis that the standards were not

addressing “compelling and extraordinary conditions.”

California State Motor Vehicle Pollution Control Standards;

Notice of Decision Denying a Waiver of Clean Air Act

Preemption for California’s 2009 and Subsequent Model Year

Greenhouse Gas Emission Standards for New Motor Vehicles,

73 Fed. Reg. 12156, 12159–63 (Mar. 6, 2008). One year later,

under the Obama Administration, the EPA determined that its

initial decision to deny the waiver had been based on an

incorrect interpretation of Section 209(b), and ultimately

granted the waiver. California State Motor Vehicle Pollution

Control Standards; Notice of Decision Granting a Waiver of

Clean Air Act Preemption for California’s 2009 and

Subsequent Model Year Greenhouse Gas Emission Standards

for New Motor Vehicles, 74 Fed. Reg. 32744, 32745–46 (July

8, 2009).

In 2012, California applied for the waiver at issue in this

case, seeking to promulgate a new set of regulations called the

Advanced Clean Car Program. See California State Motor

Vehicle Pollution Control Standards; Notice of Decision

Granting a Waiver of Clean Air Act Preemption for

California’s Advanced Clean Car Program and a Within the

Scope Confirmation for California's Zero Emission Vehicle

Amendments for 2017 and Earlier Model Years, 78 Fed. Reg.

2112 (Jan. 9, 2013). The new regulations included a Low

Emission Vehicle (“LEV”) Program, which set emissions

requirements for new cars in Model Years 2017 to 2025 with

the goal of reducing carbon dioxide emissions by thirty-four

percent, and a ZEV Program, which required around fifteen

percent of manufacturers’ fleets to be electric cars by Model

17

Year 2025. Id. The EPA initially granted the waiver in 2013.

Id. In response, automobile manufacturers in California began

making investments to meet both programs’ requirements. See,

e.g., Industry Resp.-Intervenor Br. 2–4.

In 2018, after car manufacturers had adjusted their fleets

to comply with California’s Advanced Clean Car Program, the

EPA changed its course. It issued a notice of proposed

rulemaking to withdraw the portions of the 2013 waiver

covering California’s LEV and ZEV standards. See The Safer

Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model

Years 2021-2026 Passenger Cars and Light Trucks, 83 Fed.

Reg. 42986 (Aug. 24, 2018).

The EPA withdrew the 2013 waiver on September 27,

2019. The Safer Affordable Fuel-Efficient (SAFE) Vehicles

Rule Part One: One National Program, 84 Fed. Reg. 51310

(Sept. 27, 2019) (“2019 Withdrawal Decision”). The EPA

offered three bases for the withdrawal. Id. at 51328–41. First,

the 2013 waiver conflicted with a recent determination by the

National Highway Traffic Safety Administration (“NHTSA”)

that state greenhouse gas regulations were preempted by a

provision of the EPCA that prohibits states from enacting their

own fuel economy standards. Id. at 51337–38; see also 49

U.S.C. § 32902(a), (f) (empowering the NHTSA to set federal

fuel economy standards); id. § 32919(a) (preempting state fuel

economy standards). Second, the EPA had decided that it

would no longer follow a “whole program” interpretation of

Section 209(b), and instead would evaluate whether each

individual California standard met the requirement that it be

necessary to “meet compelling and extraordinary conditions.”

2019 Withdrawal Decision, 84 Fed. Reg. at 51341 (quoting 42

U.S.C. § 7543(b)(1)). Third, California could not show that its

LEV and ZEV regulations were necessary to meet compelling

and extraordinary conditions because California could not

18

show a “particularized nexus” between greenhouse gas

emissions and California’s air pollution problems. Id.

According to the EPA, because greenhouse gas pollution from

global sources is blended in the atmosphere, the consequences

of climate change from which California suffered were not

“compelling and extraordinary.” Id. at 51333–34.

Following recission of the 2013 waiver, automobile

manufacturers such as Honda, Ford, Volvo, BMW, and

Volkswagen entered into independent agreements with

California to continue reducing emissions. See Revised 2023

and Later Model Year Light-Duty Vehicle Greenhouse Gas

Emissions Standards, 86 Fed. Reg. 74434, 74458 (Dec. 30,

2021). Under these agreements, the automakers would

continue to meet the LEV and ZEV standards in the California

regulations. Id. Automakers were motivated to sign these

agreements by the investments they had already made in

updating their fleets and growing consumer demand for electric

vehicles. See J.A. 155–57.

In 2021, under the Biden Administration, the EPA

revisited its 2019 withdrawal of the 2013 waiver. California

State Motor Vehicle Pollution Control Standards; Advanced

Clean Car Program; Reconsideration of a Previous

Withdrawal of a Waiver of Preemption; Opportunity for Public

Hearing and Public Comment, 86 Fed. Reg. 22421 (Apr. 28,

2021). On March 14, 2022, the EPA reinstated its 2013 waiver

for California’s Advanced Clean Car Program. 2022 Waiver

Reinstatement Decision, 87 Fed. Reg. at 14332. As a result of

that reinstatement, California’s LEV and ZEV standards for

Model Years 2017 through 2025 came back into force. Id. at

14333. The EPA provided three explanations for its 2022

Waiver Reinstatement Decision: the EPA exceeded its inherent

authority to revisit its 2013 decision; it improperly rejected the

“whole program” approach; and it improperly considered the

19

NHTSA’s view of the EPCA, which was beyond the scope of

Section 209(b). Id. at 14333–35.

D.

On May 12, 2022, State Petitioners filed a petition for

review in this Court challenging the EPA’s decision to reinstate

the 2013 waiver (22-1081). That same day, three groups of

Fuel Petitioners filed petitions for review of the same EPA

action (22-1083, 22-1084, and 22-1085). The Court

consolidated these cases (22-1081). California and several

other states and cities (collectively, “California”),4

environmental organizations,5 and automobile manufacturers6

have intervened in support of respondents in the consolidated

case.

4

The state and city intervenors are the City of Los Angeles, the City

of New York, Massachusetts, Pennsylvania, the District of

Columbia, California, Colorado, Connecticut, Delaware, Hawaii,

Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New

Mexico, New York, North Carolina, Oregon, Rhode Island,

Vermont, and Washington.

5

The environmental organization intervenors are the Center for

Biological Diversity, the Clean Air Council, the Conservation Law

Foundation, the Environmental Defense Fund, the Environmental

Law and Policy Center, the National Parks Conservation

Association, the Natural Resources Defense Council, the Public

Citizen, the Sierra Club, and the Union of Concerned Scientists.

6

The automobile manufacturer intervenors are Ford Motor

Company, Volkswagen Group of America, Inc., BMW of North

America, LLC, American Honda Motor Co., Inc., Volvo Car USA

LLC, the National Coalition for Advanced Transportation, Advanced

Energy Economy, Calpine Corporation, National Grid USA, the

New York Power Authority, and the Power Companies Climate

Coalition.

20

In their petition, Fuel Petitioners argue that the 2022

decision was arbitrary and capricious and exceeded the EPA’s

authority under Section 209(b) because climate change is not a

“compelling and extraordinary condition,” and California does

not “need” its standards to “meet” its climate conditions. See,

e.g., Fuel Pet. Br. 10–11. In challenging the EPA’s

determination of California’s “need,” Fuel Petitioners argue

that the EPA’s aggregate approach is wrong. Id. Meanwhile,

State Petitioners claim that by granting a waiver to California,

but not to any other state, the EPA has violated State

Petitioners’ constitutional right to equal sovereignty. See State

Pet. Br. 28–33. State Petitioners also claim that the waiver is

contrary to the preemption of state fuel economy standards set

out in the EPCA. See State Pet. Br. 33–41.

We hold that neither Fuel Petitioners as to their statutory

claims nor State Petitioners as to their EPCA claims establish

standing to bring suit, and thus we do not reach the merits of

their claims. We reject State Petitioners’ constitutional claim

on the merits.

II.

A.

We begin with the question whether either State or Fuel

Petitioners have standing based on their assertions that the

waiver will cause them economic injury. Fuel Petitioners

premise their standing as to the entirety of their petition for

review on their claimed economic injury. State Petitioners,

meanwhile, premise their standing for their claim that the

waiver is preempted by the EPCA on their alleged economic

injury.

21

A “showing of standing is ‘an essential and unchanging’

predicate to any exercise of our jurisdiction.” Fla. Audubon

Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

“[S]tanding is assessed as of the time a suit commences.” Del

Monte Fresh Produce Co. v. United States, 570 F.3d 316, 324

(D.C. Cir. 2009). The “irreducible constitutional minimum of

standing contains three elements.” Lujan, 504 U.S. at 560.

First, the plaintiff must have suffered an injury-in-fact—an

“invasion of a judicially cognizable interest which is (a)

concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical.” Bennett v. Spear, 520 U.S. 154,

167 (1997). Second, there must be a “causal connection

between the injury and the conduct complained of—the injury

must be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some

third party not before the court.” Id. Third, “it must be ‘likely,’

as opposed to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561

(quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 43

(1976)).

“A petitioner bears the burden of establishing each” of the

elements of standing. Chamber of Com. of U.S. v. EPA, 642

F.3d 192, 200 (D.C. Cir. 2011). To meet that burden, a

petitioner must “show a ‘substantial probability’ that it has

been injured, that the defendant caused its injury, and that the

court could redress that injury.” Sierra Club v. EPA, 292 F.3d

895, 899 (D.C. Cir. 2002) (quoting Am. Petroleum Inst. v. EPA,

216 F.3d 50, 63 (D.C. Cir. 2000)). And a petitioner may not

wait to attempt to meet its burden of demonstrating standing

until after the respondent contests the issue. Rather, absent

“good cause shown,” a petitioner whose standing is not readily

apparent must show that it has standing in “its opening brief.”

Id. at 900–01. A petitioner may carry this “burden of

22

production by citing any record evidence relevant to its claim

of standing and, if necessary, appending to its filing additional

affidavits or other evidence sufficient to support its claim.” Id.;

see also D.C. Cir. R. 28(a)(7).

Whether a petitioner has standing to challenge a particular

government action depends, in part, upon whether the

petitioner is “an object of the action” at issue. Lujan, 504 U.S.

at 561. When a petitioner is an object of the action it seeks to

challenge, causation and redressability are usually easy to

demonstrate. Id. But when, as here, the petitioner “is not

[it]self the object of the government action or inaction he

challenges, standing is not precluded, but is ordinarily

‘substantially more difficult’ to establish.” Id. at 562 (quoting

Allen v. Wright, 468 U.S. 737, 758 (1984)). Because any injury

to petitioners “hinges on actions taken by manufacturers, the

petitioners carry ‘the burden of adduc[ing] facts showing that

those [third-party] choices have been or will be made in such

manner as to produce causation and permit redressability of

injury.’” Chamber of Com., 642 F.3d at 201 (alterations in

original) (quoting Ctr. for Biological Diversity v. U.S. Dep’t of

Interior, 563 F.3d 466, 477 (D.C. Cir. 2009)).

As we will explain, these principles compel the conclusion

that both State and Fuel Petitioners lack standing premised on

their claimed economic injuries because neither group of

Petitioners has met their burden of demonstrating that those

injuries are redressable.

B.

Fuel Petitioners argue that, by requiring vehicle

manufacturers to sell vehicles that use less or no liquid fuel,

California’s LEV and ZEV requirements depress the demand

23

for liquid fuels.7 Fuel Petitioners and their members, who

produce and sell liquid fuels and the raw materials used to

produce those fuels, are thereby financially injured by the

reduction in demand for those products. Fuel Pet. Br. 16; Fuel

Pet. Reply Br. 3–4. In support of Fuel Petitioners’ contention

that they are economically injured by the waiver, Fuel

Petitioners offer over a dozen declarations by individuals who

are affiliated with Fuel Petitioner entities and organizations; the

individuals explain that the entity or organization is involved

with producing or selling fuel and that the waiver causes Fuel

Petitioners economic injury by reducing the demand for fuel

and related products.

State Petitioners, meanwhile, allege three financial injuries

that they contend are caused by the waiver. First, the waiver

causes manufacturers to increase the cost of conventional

vehicles elsewhere in the country in order to account for the

cost of meeting the requirements imposed on manufacturers by

the waiver granted to California. State Petitioners explain that

because they purchase conventional vehicles, the increase in

the prices for those vehicles that results from the waiver causes

State Petitioners financial harm. State Pet. Br. 14–15. Second,

State Petitioners contend that the greater shift to electric

vehicles that results from the waiver will cause State

Petitioners to generate less fuel-tax revenue. Id. Finally, State

Petitioners argue that the increase in electric vehicles caused

by the waiver will affect the States’ electrical grids. In support

of their standing claims, State Petitioners offer a declaration

7

Fuel Petitioners include both associations and individual entities.

Fuel Pet. Br. 16. Because, as we explain, we conclude that all Fuel

Petitioners have failed to establish redressability, we need not

address whether any of the Fuel Petitioner associations have

established organizational standing. Cf. Sierra Club, 292 F.3d at 898

(laying out the requirements for establishing organizational

standing).

24

from each individual State Petitioner and a declaration from an

economist, Benjamin Zycher, Ph.D. Each State Petitioner’s

declaration states that the state purchases conventional (that is,

gas- or diesel-powered) vehicles. State Pet. Add. 6–36. In his

declaration, Dr. Zycher contends that California’s ZEV

requirement will have several economic impacts on State

Petitioners, including an increase in the cost of conventional

vehicles nationwide, a “decline in the quality of delivered state

services,” a reduction in “fuel tax revenues available for the

provision of highway and road services,” and an “increase in

the costs and prices of delivering electric power services.”

State Pet. Add. 38–39.

The EPA and California both dispute that State and Fuel

Petitioners’ allegations and evidence establish injury and

causation sufficient to support standing. EPA Br. 23–28

(arguing State Petitioners fail to demonstrate standing);

California Br. 9–15 (arguing both State and Fuel Petitioners fail

to demonstrate standing). For example, as to causation,

California argues that both groups of Petitioners fail to

demonstrate that their alleged injuries are caused by the 2022

waiver reinstatement, rather than the original 2013 waiver or

rising consumer demand for electric vehicles more generally.

California Br. 11, 14. But this Court need not definitively

decide whether either set of Petitioners has established injury

or causation. However robust their claims of injury and

causation are, State and Fuel Petitioners spend considerably

less time explaining how those injuries are redressable. Indeed,

even assuming that both sets of Petitioners have established

injury and causation sufficient for standing, Petitioners’

standing arguments fail for the same reason: Both groups of

Petitioners fall far short of meeting their burden of

demonstrating a “substantial probability” that their alleged

injuries would be redressed by a favorable decision by this

25

Court. Am. Petroleum, 216 F.3d at 63; see also Sierra Club,

292 F.3d at 899–900.

Fuel Petitioners assert in their opening brief—without

explanation or citation—that this Court could redress their

injuries “by setting aside the action.” Fuel Pet. Br. 16. Fuel

Petitioners’ declarations offer little more; to the extent that Fuel

Petitioners’ declarations discuss redressability at all, the

declarations state that the injuries discussed therein “would be

substantially ameliorated if EPA’s decision were set aside.”

State Petitioners’ opening brief is similarly conclusory

regarding redressability. State Petitioners assert that their

“injuries are redressable because a judgment setting aside the

waiver would eliminate the source of their injuries.” State Pet.

Br. 16. However, none of the declarations submitted by State

Petitioners with their opening brief addresses redressability at

all.

The difficulty for Fuel and State Petitioners is that their

claimed injuries “hinge[] on” the actions of third parties—the

automobile manufacturers who are subject to the waiver.

Chamber of Com., 642 F.3d at 201. Redressability, too,

“hinge[s] on the response of” those same automobile

manufacturers. Lujan, 504 U.S. at 562. Both groups of

Petitioners’ injuries would be redressed only if automobile

manufacturers responded to vacatur of the waiver by producing

and selling fewer non-conventional vehicles or by altering the

prices of their vehicles such that fewer non-conventional

vehicles—and more conventional vehicles—were sold.

And, aside from turning on the actions of the automobile

manufacturers subject to the waiver, redressability is further

complicated by the relatively short duration of the waiver that

Petitioners challenge. These petitions for review concern only

the EPA’s decision, in March 2022, to reinstate the waiver it

26

had previously granted California as to Model Years 2017

through 2025. See 2022 Waiver Reinstatement Decision, 87

Fed. Reg. 14337. Thus, to meet their burden of demonstrating

redressability, both sets of Petitioners must demonstrate a

“substantial probability” not only that automobile

manufacturers are likely to respond to a decision by this Court

by changing their fleets in a way that alleviates their injuries in

some way, but also that automobile manufacturers would do so

relatively quickly—by Model Year 2025. Am. Petroleum, 216

F.3d at 63.

The record evidence provides no basis for us to conclude

that manufacturers would, in fact, change course with respect

to the relevant model years if this Court were to vacate the

waiver. To begin, Petitioners fail to point to any evidence

affirmatively demonstrating that vacatur of the waiver would

be substantially likely to result in any change to automobile

manufacturers’ vehicle fleets by Model Year 2025. The only

evidence points in the opposite direction, indicating that

automobile manufacturers need years of lead time to make

changes to their future model year fleets. In a comment

submitted to the EPA during the rulemaking process regarding

the EPA’s 2019 recission of the 2013 waiver, for example, Ford

Motor Company stated that its product cycle requires several

years of lead time for planning, and that its “regulatory lead

time (i.e., awareness of future regulatory requirements)” is

seven years. J.A. 637. Ford explained that, as a result, if the

regulatory landscape shifted in some way, “little or nothing

could be done to re-optimize the company’s product plans,

which are largely fixed for the next few years.” Id. Further,

the record indicates that other automobile manufacturers would

also require years of lead time to alter their product plans. In

comments submitted to the EPA during the EPA’s rulemaking

process regarding the 2022 waiver reinstatement, Tesla, Inc.

and Toyota Motor North America, Inc., explained that their

27

vehicle product cycles, too, can also begin years before a

vehicle is launched. J.A. 371, 477; see also J.A. 370 n.5

(summarizing similar statements from Chrysler Group LLC,

Hyundai America Technical Center, Inc., and Mitsubishi

Motors North America). Thus, even if automobile

manufacturers were inclined to change course so as to alleviate

the Petitioners’ injuries within the given model years, it is far

from clear that they could do so within the model years covered

by the waiver.8 To be sure, it is possible that manufacturers

could change their prices without modifying their production

cycles, which may redress Petitioners’ injuries because pricing

could affect the mix of conventional and electric vehicles

purchased. But Petitioners point us to no evidence that

manufacturers would change their prices by Model Year 2025

either.

Despite the paucity of evidence in the record regarding the

redressability of their injuries, neither group of Petitioners

attempts to explain in any detail how their injuries are

redressable, let alone to “cit[e] any record evidence” or to file

“additional affidavits or other evidence sufficient to support”

redressability. Sierra Club, 292 F.3d at 900–01. Nor, for that

matter, does either set of Petitioners grapple with the relatively

short nature of the waiver they challenge. Rather, all

Petitioners seem to have treated redressability as a foregone

conclusion. See Crete Carrier Corp. v. EPA, 363 F.3d 490,

494 (D.C. Cir. 2004) (petitioners lacked standing where they

failed to produce “actual evidence” regarding how the

regulated parties “would respond” to vacatur); Branton v. FCC,

8

We also note that several automobile manufacturers have

intervened in support of the EPA in this case. Those manufacturers

explain in their brief in support of the EPA that “both internal

sustainability goals and external market forces” are prompting

manufacturers to transition toward electric vehicles, irrespective of

California’s regulations. Industry Resp.-Intervenor Br. 6–7.

28

993 F.2d 906, 912 (D.C. Cir. 1993) (“A court is rightly

reluctant to enter a judgment which may have no real

consequence, depending upon the putative cost-benefit

analyses of third parties over whom it has no jurisdiction and

about whom it has almost no information.”).

When asked about redressability at oral argument, counsel

for Fuel Petitioners emphasized that redressability—as with

each prong of standing—is assessed when a lawsuit is first

filed. Oral Argument Transcript 74; see also Del Monte, 570

F.3d at 325 (“[S]tanding is assessed as of the time a suit

commences.”). True enough. But that does not help Fuel

Petitioners: Even “as of the time” this lawsuit commenced,

Fuel Petitioners had failed to point to any evidence in the record

showing that their alleged injuries were redressable. Del

Monte, 570 F.3d at 325. Put differently, the flaw in Fuel

Petitioners’ standing arguments is not—as counsel for Fuel

Petitioners contended at oral argument, Oral Argument

Transcript 74–75—that their standing arguments were

sufficient when originally filed, but that their claims have been

mooted by the passage of time. Fuel Petitioners’ standing

arguments were deficient from the start.

State Petitioners, meanwhile, argue that, to the extent that

there is any doubt that they have met their burden of

demonstrating causation and redressability, this Court should

resolve it in their favor given the “special solicitude” to which

states are entitled when they seek to protect their “quasi-

sovereign interests.” Massachusetts v. EPA, 549 U.S. 497,

518–20 (2007); see also State Pet. Br. 16. We disagree. The

“special solicitude” afforded to states can relax standing

requirements only so far. Massachusetts, 549 U.S. at 520.

Even the “greater leeway” afforded to states seeking to protect

quasi-sovereign interests cannot save defective standing claims

when, as here, the record is “almost completely silent” with

29

respect to an element of a state’s standing. Alaska v. U.S. Dep’t

of Agric., 17 F.4th 1224, 1230 (D.C. Cir. 2021).

State and Fuel Petitioners’ sparse treatment of

redressability is particularly surprising because, in a previous

case, this Court noted that it could not presume redressability

in essentially the same circumstances. In Chamber of

Commerce of the United States v. EPA, the Chamber of

Commerce and the National Automobile Dealers Association,

on behalf of their automobile dealer members, petitioned for

review in this Court of the EPA’s decision to grant California

a waiver, under Section 209(b), with respect to automobile

Model Years 2009 through 2016. 642 F.3d at 196–97. There,

the petitioners—automobile dealers who, like the Petitioners in

this case, were not directly subject to the waiver—explained

that automobile manufacturers’ responses to the waiver injured

them in two ways. First, automobile manufacturers would

respond to the waiver by altering the mix of vehicles they sold

in California and other states; as a result, vehicle dealers would

be injured because they would be unable to obtain specific

vehicles that their customers wanted to buy. Id. at 201. And

second, the California standards would increase automobile

manufacturers’ costs and, in turn, increase the prices of the

automobiles they manufactured. Id. The automobile dealers

believed they would be injured by those increased vehicle costs

because they would have to choose whether to keep their prices

the same, and accordingly lower their profit margins, or to

increase their prices to account for the increased vehicle costs,

at the risk of turning away customers. Id.

The Chamber of Commerce Court ultimately resolved

petitioners’ claims on mootness grounds, not standing. Id. at

204, 206. But before reaching that conclusion, the Court

expressed serious doubts that the petitioners had met their

burden of demonstrating redressability. Id. at 205. The record

30

before the Court indicated that vacatur of the challenged waiver

may not result in any change on the part of automobile

manufacturers. And, the Court noted, “Petitioners ha[d]

offered no evidence to the contrary, and no evidence that, if the

waiver were vacated, [automobile manufacturers] would

proceed on a different course more favorable to the

petitioners.” Id. at 205–06. So even if petitioners’ claims were

not moot, their failure to introduce redressability evidence

made it—at a minimum—rather unclear whether their claims

were redressable.

As the EPA and intervenors correctly recognize, State and

Fuel Petitioners’ standing submissions run into precisely the

same problem here. In its response brief, the EPA explains in

some detail how State Petitioners have failed to substantiate the

redressability of their injuries. EPA Br. 26. California,

meanwhile, argues that neither group of Petitioners has

provided any evidence that vacatur would remedy their

injuries. California Br. 13. Further underlining the point,

California offers an expert declaration by Joshua M.

Cunningham, the Chief of the Advanced Clean Cars Branch of

the California Air Resources Board, who explains in specific

terms why the Petitioners’ claims are unlikely to be redressed

by a favorable decision by this Court. California Add. 84–85;

96–99. Cunningham explains that automobile manufacturers

have already made a number of public commitments regarding

both vehicle pricing and availability with respect to the

remaining model years covered by the challenged waiver; those

public commitments would tend to suggest that neither group

of Petitioners’ claims are redressable. As Cunningham puts it,

“manufacturers have likely already made pricing decisions for”

the remaining model years. California Add. 96. Cunningham

also states that “manufacturers are already selling more

qualifying vehicles in California than the State’s standards

require,” suggesting that vacatur of the zero-emission vehicle

31

mandate would not redress Petitioners’ injuries. California

Add. 98. Indeed, record evidence supports the fact that

manufacturers already exceed California’s ZEV requirements.

See J.A. 300–02. Yet despite these arguments against their

theory of redressability, neither State nor Fuel Petitioners

meaningfully addressed the redressability of their economic

injuries in their reply briefs.9 State Pet. Reply Br. 3, Fuel Pet.

Reply Br. 3–6.

Ultimately, the record evidence, coupled with the filings

of the EPA and intervenors, provide this Court with no basis to

conclude that Petitioners’ claims are redressable—a necessary

element of standing that Petitioners bear the burden of

establishing. As in Chamber of Commerce, “Petitioners have

offered no evidence to the contrary, and no evidence that, if the

waiver were vacated, [automobile manufacturers] would

proceed on a different course more favorable to the

petitioners.” 642 F.3d at 205. Rather, both State and Fuel

Petitioners “offer only assertions, not facts, to support their

claims about the likely response” of automobile manufacturers

to a favorable decision by this Court. Crete Carrier Corp., 363

F.3d at 494. But “[s]peculative and unsupported assumptions

regarding the future actions of third-party market participants

are insufficient to establish Article III standing.” Id.10

9

This Court denied a motion by State Petitioners to file with their

reply brief new evidence regarding their standing. Per Curiam Order,

Aug. 9, 2023. That proposed supplemental evidence, however,

concerned only State Petitioners’ allegations of economic injuries

stemming from the waiver, not the redressability of those injuries.

ECF 2019756. At any rate, the evidence was too late. See D.C. Cir.

R. 28(a)(7).

10

We conclude that Petitioners have failed to introduce sufficient

evidence to raise a dispute of fact as to whether changes to the

remaining model year fleets are substantially likely if vacatur were

to occur, so we have no need to refer this to a district judge or special

32

Petitioners may not proclaim that their injuries are redressable

and expect this Court to take them at their word. On this record,

redressability poses a “fatal stumbling block” for both sets of

Petitioners. Cato Institute v. SEC, 4 F.4th 91, 95 (D.C. Cir.

2021). We accordingly hold that both State and Fuel

Petitioners lack standing premised on their economic injuries

because they have failed to meet their burdens of

demonstrating that their claims are redressable.

C.

After oral argument, Fuel Petitioners filed a motion to

supplement the record and to file a supplemental brief

regarding their standing. Fuel Pet. Mot. to Supp. 1. Fuel

Petitioners contend that the EPA and California raised for the

first time at oral argument the question whether Fuel

Petitioners’ claims could be redressed within the relevant

model years—an issue Fuel Petitioners argue pertains to

mootness, not the redressability of their claims. Fuel Pet. Mot.

to Supp. 1–2. Fuel Petitioners argue that they should be

allowed to file new evidence with this Court to “address that

new argument.” Fuel Pet. Mot. to Supp. 1.

We deny Fuel Petitioners’ motion to supplement the

record and to file a supplemental brief. As we have explained,

a petitioner must generally demonstrate standing in its opening

brief, either by “citing any record evidence relevant to its claim

of standing” or, where necessary, by “appending to its filing

additional affidavits or other evidence.” Sierra Club, 292 F.3d

at 900–01. This Court has, on rare occasion, accepted late

affidavits or other evidence in support of standing for “good

master as a disputed factual issue for resolution before making our

ruling on redressability. See FCC v. ITT World Commc’ns, Inc., 466

U.S. 463, 469 (1984) (citing 28 U.S.C. § 2347(b)(3)); Fed. R. App.

R. 48(a).

33

cause” shown. Am. Libr. Ass’n v. FCC, 401 F.3d 489, 495–96

(D.C. Cir. 2005) (quoting Sierra Club, 292 F.3d at 900); Nat’l

Council for Adoption v. Blinken, 4 F.4th 106, 112 (D.C. Cir.

2021). We have found “good cause” when, for example, “‘the

parties reasonably, but mistakenly, believed’ that they

‘sufficiently demonstrated standing’ or when they ‘reasonably

assumed that their standing was self-evident.’” Nat’l Council

for Adoption, 4 F.4th at 111 (quoting Twin Rivers Paper Co.

LLC v. SEC, 934 F.3d 607, 614 (D.C. Cir. 2019)).

No such good cause exists here. We do not think Fuel

Petitioners could have reasonably believed that they had

adequately demonstrated standing or that their standing was

“self-evident” from the record when they filed their opening

brief. Twin Rivers, 934 F.3d at 614. As this Court and the

Supreme Court have repeatedly explained, redressability is

“‘substantially more difficult’ to establish” when, as here,

Petitioners are not directly regulated by the government action

they seek to challenge. Lujan, 504 U.S. at 562 (quoting Allen,

468 U.S. at 758). Indeed, as noted above, this Court has

previously expressed doubt that petitioners seeking to

challenge a Section 209 waiver had demonstrated

redressability where they had failed to put any such evidence

in the record. Chamber of Com., 642 F.3d at 205. And Fuel

Petitioners should have been aware that redressability may

pose a particularly challenging obstacle here, considering the

relatively narrow timeframe of the particular waiver Petitioners

challenge and the evidence in the record showing that

automobile manufacturers generally require years of lead time

to make changes to their future model year fleets. Yet Fuel

Petitioners failed to meaningfully address redressability in their

opening brief at all, either by “identify[ing] . . . record

evidence” or by offering the Court evidence of their own.

Sierra Club, 292 F.3d at 899.

34

Second, even if Fuel Petitioners reasonably believed that

their standing was “self-evident” when they filed their opening

brief, Petitioners offer no explanation for having failed to

address redressability in their reply brief after California raised

the issue in its opposition brief. Twin Rivers, 934 F.3d at 614.

In this respect, Fuel Petitioners’ motion relies on a false

premise: Oral argument was plainly not the first time that

California argued that Fuel Petitioners had failed to

demonstrate redressability. Rather, as we have explained,

California explicitly argued that Fuel Petitioners had offered no

evidence regarding the redressability of their injuries, and

California provided the Court with a declaration that addressed

the point. Having failed even to attempt to respond to

California’s arguments regarding redressability at the reply

stage, Fuel Petitioners provide this Court with no reason to

allow them to do so now.

III.

State Petitioners also argue that the EPA’s 2022 decision

is “contrary to constitutional right” under 5 U.S.C. § 706(2)(B)

because Section 209(b) of the Clean Air Act is

unconstitutional. They rely on the equal sovereignty principle,

which the Supreme Court applied in Shelby County v. Holder,

570 U.S. 529 (2013), to hold that Fifteenth Amendment

legislation that disparately impacts states’ control over voting

procedures must be “sufficiently related to the problem it

targets.” Id. at 542 (quoting Nw. Austin Mun. Util. Dist. No.

One v. Holder, 557 U.S. 193, 203 (2009)). State Petitioners

argue that this principle also categorically prohibits Congress

from using its Commerce Clause power in a way that

withdraws sovereign authority from some states but not others.

And Section 209(b), they say, violates that principle by

preempting the authority of every state but California to

regulate motor vehicle emissions. We conclude that State

35

Petitioners have standing to raise this constitutional claim, but

we join the two other circuits to have considered the issue in

rejecting State Petitioners’ request to extend the equal

sovereignty principle in this fashion. See NCAA v. Governor

of New Jersey, 730 F.3d 208, 239 (3d Cir. 2013), abrogated on

other grounds by Murphy v. NCAA, 138 S. Ct. 1461 (2018);

Mayhew v. Burwell, 772 F.3d 80, 95 (1st Cir. 2014).

A.

To assess State Petitioners’ standing for this constitutional

claim, we again “assume that on the merits” petitioners “would

be successful.” City of Waukesha v. EPA, 320 F.3d 228, 235

(D.C. Cir. 2003). Assuming State Petitioners’ constitutional

theory is correct, Section 209(b) and the EPA’s 2022 decision

violate their constitutionally protected interest in equal

sovereignty by leaving them with less regulatory authority over

vehicle emissions than California. This claimed injury is akin

to the type of dignitary injury recognized in equal protection

cases. Heckler v. Matthews, 465 U.S. 728, 739–40 (1984).

And, State Petitioners argue, invalidating the decision would

redress that injury and restore their sovereign equality by

removing California’s greater authority.

Respondents resist that analysis on the ground that State

Petitioners do not ask this court to increase their own sovereign

authority over motor vehicle emissions. The States instead

seek to reduce California’s authority.

The Supreme Court has repeatedly held, however, that this

type of “leveling down” remedy is sufficient to support

standing when a party asserts a constitutional right to equality.

As the Court has put it, “when the ‘right invoked is that to equal

treatment,’ the appropriate remedy is a mandate of equal

treatment, a result that can be accomplished by withdrawal of

benefits from the favored class as well as by extension of

36

benefits to the excluded class.” Heckler, 465 U.S. at 740

(quoting Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S.

239, 247 (1931)); see also Sessions v. Morales-Santana, 582

U.S. 47, 72–73 (2017). That principle developed in cases

applying the Fourteenth Amendment’s Equal Protection

Clause. But Respondents have not identified—and we do not

perceive—any material reason to treat the right to equal

sovereignty claimed here any differently for standing

purposes.11 And under the logic of the Equal Protection cases,

holding Section 209(b) unconstitutional and vacating the

waiver would redress the claimed constitutional injury by

leaving all states equally positioned, in that none could regulate

vehicle emissions. Accordingly, unlike with their asserted

economic injuries, State Petitioners’ asserted constitutional

injury can be redressed even absent evidence that

manufacturers will change their plans before the waiver

expires.12

11

Although we find State Petitioners’ claimed dignitary harm

sufficiently analogous in kind for purposes of standing, we do not

suggest that this harm is commensurate with equal protection injuries

based on the perpetuation of “archaic and stereotypic notions” and

stigmatization of members “of [a] disfavored group as ‘innately

inferior.’” Heckler, 465 U.S. at 739 (quoting Miss. Univ. for Women

v. Hogan, 468 U.S. 718, 725 (1982)).

12

State Petitioners’ standing for their constitutional claim under 5

U.S.C. § 706(2)(B) does not revive their statutory preemption claim

under § 706(2)(A). As the Supreme Court has repeatedly held,

standing “is not dispensed in gross; rather, plaintiffs must

demonstrate standing for each claim that they press and for each form

of relief that they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413,

431 (2021); see also, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 352 (2006); Davis v. Fed. Election Comm’n, 554 U.S. 724, 734

(2008). We are aware of no precedent or rationale that would allow

parties to bring claims over which we otherwise would lack

37

B.

Turning to the merits, we reject State Petitioners’ theory.

The Supreme Court has held that the Constitution contains a

“fundamental principle of equal sovereignty.” Shelby County,

570 U.S. at 544. But neither the Supreme Court nor any other

court has ever applied that principle as a limit on the Commerce

Clause or other Article I powers. As explained below, the

rationale of Shelby County and the cases on which it relied in

fact suggests that the principle imposes no such limit. The

parties’ remaining arguments confirm that conclusion. We

therefore hold that Section 209(b) is subject to traditional

rational basis review for Commerce Clause legislation and—as

no one disputes—that it is constitutional under that standard.

Shelby County addressed the constitutionality of the

Voting Rights Act’s (“VRA”) coverage formula, which

required some but not all states to obtain approval from federal

authorities before enacting voting-related laws, a process

known as preclearance. Id. at 536–37. The Court did not

disturb South Carolina v. Katzenbach, 383 U.S. 301 (1966),

which held that the coverage formula in the Voting Rights Act

of 1965 was constitutional because it was “rational in both

practice and theory.” Shelby County, 570 U.S. at 550 (quoting

Katzenbach, 383 U.S. at 330); see also id. at 550–51

(discussing the exceptional circumstances that supported

Katzenbach’s conclusion). Instead, the core question in Shelby

County was whether Congress had sufficient justification for

continuing to subject those states to the preclearance

requirement in its 2006 reauthorization of the Voting Rights

Act. Id. The Supreme Court relied in part on the “fundamental

principle of equal sovereignty,” id. at 544, to hold that the

jurisdiction—such as State Petitioners’ statutory preemption claim—

by appending another claim subject to a different standing analysis.

38

VRA’s coverage formula was unconstitutional because it was

founded on “decades-old data and eradicated practices,” id. at

551, instead of being tailored to “current conditions,” id. at 557.

The Court did not outright reject the coverage formula for

treating states differently; instead, it held that the formula’s

“disparate geographic coverage” was not “sufficiently related

to the problem that it targets.” Id. at 550–51 (quoting Nw.

Austin, 557 U.S. at 203).

State Petitioners do not ask us to apply Shelby County’s

test that a statute’s “disparate geographic coverage” must be

“sufficiently related to the problem that it targets.” State Pet.

Reply Br. 13 (“Shelby County never suggested this test applies

in other contexts.”). Indeed, they forfeited any argument that

the waiver here fails Shelby County’s “sufficiently related” test

by raising that argument for the first time in their reply brief.

State Pet. Reply Br. 14–15. Instead, State Petitioners rely on

Shelby County to argue that the equal sovereignty principle

operates as a categorical bar on Congress’s Commerce Clause

authority—that is, that the principle prohibits Congress from

enacting Commerce Clause legislation that leaves some states

with more sovereign authority than others, regardless of

Congress’s reasons for doing so. State Pet. Br. 24–25, 28–29

(“Section 209(b) violates the equal-sovereignty doctrine by

allowing California to exercise sovereign authority that

§ 209(a) takes from every other State.”); State Pet. Reply Br.

10, 12.13

13

State Petitioners half-heartedly suggest that “Congress arguably

complies with the equal-sovereignty doctrine when it empowers only

a single State (or a single subset of States) to regulate a matter of

unique concern to that State (or that subset of States),” such as if

Congress were to allow just one state to regulate a mineral that exists

only in that state. State Pet. Br. 26–27. Such a law would fit with

State Petitioners’ categorical theory because it would not “deny

sovereign authority to any State capable of exercising it.” State Pet.

39

For several reasons, Shelby County does not support State

Petitioners’ request that we apply the equal sovereignty

principle as a categorical limit on Congress’s authority over

interstate commerce. First, the central debate in Shelby County

was the scope of Congress’s power to enforce the Fifteenth

Amendment “by appropriate legislation.” 570 U.S. at 536

(quoting U.S. Const. amend. XV). The Court used equal

sovereignty as a background principle in applying that phrase.

Id. at 544–45. State Petitioners confirm that textual link in their

brief to us, arguing that Shelby County means that “in deciding

whether such legislation was ‘appropriate,’ courts must consult

the background principle of equal sovereignty.” State Pet. Br.

24.

But unlike the Fifteenth Amendment, Congress’s

Commerce Clause power is not limited to “appropriate

legislation.” The Commerce Clause instead declares

unconditionally that Congress has the power “to regulate

commerce with foreign nations, among states, and with the

Indian tribes.” U.S. Const. art. I § 8, cl. 3. As the Supreme

Court has explained, the Commerce Clause is “a grant of

plenary authority to Congress,” Hodel v. Va. Surface Mining &

Reclamation Ass’n, 452 U.S. 264, 276 (1981), and

“acknowledges no limitations” other than those “prescribed in

the constitution” and “expressed in plain terms,” Gibbons v.

Ogden, 22 U.S. 1, 196 (1824).

Second, in requiring that the VRA’s coverage formula be

sufficiently related to the problem it targets, Shelby County

repeatedly emphasized that the VRA was “extraordinary,” 570

U.S. at 536, because it intruded on states’ power to regulate

Reply Br. 14. As the example indicates, this suggestion is not

substantively different from the theory that the equal sovereignty

principle imposes a categorical limit on Congress’s Commerce

Clause authority, and we therefore do not address it separately.

40

elections, a “sensitive area of state and local policymaking,” id.

at 545 (quoting Lopez v. Monterey County, 535 U.S. 266, 282

(1999)), which “the Framers of the Constitution intended the

States to keep for themselves,” id. at 543 (quoting Gregory v.

Ashcroft, 501 U.S. 452, 461 (1991)). The VRA was therefore

a “drastic departure from basic principles of federalism.” Id. at

535. Because the VRA departed from the traditional balance

of state and federal power over elections, the Court required a

heightened showing that subjecting specific states to the

preclearance requirement was still “appropriate” considering

the nation’s current conditions. Id. at 555.

Section 209(b) is not “extraordinary” in that way. The

Constitution places regulation of all matters affecting interstate

commerce—including vehicle emissions—squarely within

Congress’s domain, not that of the states. See Miss. Comm’n

on Env’t Quality v. EPA, 790 F.3d 138, 180–83 (D.C. Cir.

2015); see also Massachusetts, 549 U.S. at 528–29. Indeed, in

discussing the Constitution’s assignment to Congress of

control over interstate commerce the Court has stressed that

“[n]o other federal power was so universally assumed to be

necessary” and “no other state power was so readily

relinquished.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S.

525, 534 (1949). Accordingly, no one questions that Congress

could readily preempt all states from regulating motor vehicle

emissions, or that Congress itself could set different vehicle

emissions standards for different regions of the country. See

Sec’y of Agric. v. Cent. Roig Refin. Co., 338 U.S. 604, 616

(1950) (recognizing Congress’s authority to “devise . . . a

national policy with due regard for the varying and fluctuating

interests of different regions”); Hodel v. Indiana, 452 U.S. 314,

332 (1981). Shelby County does not support requiring a

heightened justification for disparate intrusions into areas over

which the Constitution grants Congress such comprehensive

control. As the Third Circuit put it, “there is nothing in Shelby

County to indicate that the equal sovereignty principle is meant

41

to apply with the same force outside the context of ‘sensitive

areas of state and local policymaking.’” NCAA, 730 F.3d at

239 (quoting Shelby County, 570 U.S. at 545).

Further, State Petitioners ask us not only to venture beyond

the bounds Shelby County set for the equal sovereignty

principle but also to dramatically increase its force. Recall that

Shelby County did not establish a categorical bar against

Congress leaving states with different levels of sovereign

authority even in the traditionally state-dominated context of

voting; it required only that Congress show the disparate

treatment is “sufficiently related to the problem that it targets.”

570 U.S. at 550–51 (quoting Nw. Austin, 557 U.S. at 204).

Indeed, the Court reaffirmed Katzenbach’s holding that

Congress could do so with sufficient evidence. Id. Yet State

Petitioners ask us to hold that the equal sovereignty principle

operates as a categorical bar against treating states differently

in the context of Commerce Clause legislation. State Pet. Br.

28–29; State Pet. Reply Br. 10–11. Given that the Constitution

grants Congress primacy over interstate commerce, that would

be a highly counterintuitive conclusion.

State Petitioners also rely on a series of cases known as the

equal footing cases, which Shelby County cited as applying the

equal sovereignty principle. See 570 U.S. at 544. Those cases

involved congressional attempts to place limits on new states

as a condition of admission to the Union and identified “equal

sovereignty” as an “attribute . . . guaranteed to” each state

“upon admission.” United States v. Louisiana, 363 U.S. 1, 16

(1960), supplemented sub nom. United States v. Louisiana, 382

U.S. 288 (1965). For example, Coyle v. Smith, 221 U.S. 559

(1911), held that Congress had no authority to prohibit

Oklahoma from moving its state capital as a condition of

admission into the United States. Id. at 567–68. The Court’s

opinion addressed whether Congress’s power to admit new

states into the Union allowed such a condition, which was

42

concededly beyond any of Congress’s other enumerated

powers. Id. The Court explained that Congress could not use

its admission power to require a new state to give up an aspect

of sovereignty that the thirteen original states retained. Id. To

do so, the Court concluded, would create a “union of states

unequal in power, as including states whose powers were

restricted only by the Constitution, with others whose powers

had been further restricted by an act of Congress accepted as a

condition of admission.” Id. at 567. State Petitioners here seize

on that and similar language to support their argument that the

equal sovereignty principle must mean Congress generally has

no power to legislate in ways that leave the states with unequal

sovereign authority.

The equal footing cases, however, do not directly apply

either outside of the admission context or to Article I powers

like the Commerce Clause. Shelby County itself reaffirmed

prior holdings that the doctrine is not a “bar on differential

treatment outside th[e] context” of states’ admission into the

Union. 570 U.S. at 544. Shelby County, of course, drew on the

equal footing cases and concluded that the principle of equal

sovereignty they discuss remained “highly pertinent” in the

context of that case. Id. But for all the reasons explained

above, Shelby County does not extend the principle even

further to any (let alone all) Article I legislation.

The equal footing cases themselves also support that

conclusion. Those cases contemplated—though, to be sure,

only in dicta—that even if Congress treated states differently

at the time of admission, it would not violate the equal footing

guarantee so long as it acted within the scope of its plenary

powers over interstate commerce. The Court suggested in

Coyle that Congress could treat states differently if—instead of

using its admission power—it enacted “legislation intended as

a regulation of commerce,” because to do that would be acting

“within the sphere of the plain power of Congress.” 221 U.S.

43

at 574; see also id. at 572–74; Pollard v. Hagan, 44 U.S. 212,

229–30 (1845). Such a condition would not put states on an

impermissibly unequal footing because it “would not operate

to restrict the state’s legislative power in respect of any matter

which was not plainly within the regulating power of

Congress.” Coyle, 221 U.S. at 574. Accordingly, the equal

footing cases fit neatly with the conclusion that the equal

sovereignty principle is not a categorical bar on Congress

deploying its plenary power over interstate commerce in ways

that differentially affect states’ legislative power.

The parties also debate whether State Petitioners’ theory is

supported by the Constitution’s text, founding era history, and

law of nations principles. We address each in turn and

conclude these other indicators of constitutional meaning do

not support State Petitioners’ theory.

The Constitution does not contain any textual provision

suggesting an equal sovereignty limit on Congress’s Article I

powers generally or on the Commerce Clause in particular. As

already discussed, the Commerce Clause is a plenary grant of

authority to regulate interstate commerce which the Supreme

Court has held is subject only to those limitations “prescribed

in the constitution” and “expressed in plain terms.” Gibbons,

22 U.S. at 196.

To the extent the Constitution’s text sheds light on the

question, it appears to cut against State Petitioners, because the

Constitution does impose certain equality-based limitations on

other Article I powers. For example, the text of Article I,

Section 8 states that laws concerning bankruptcy,

naturalization, and duties shall be “uniform.” See U.S. Const.

art. I, § 8, cl. 1, cl. 4. Similarly, Article I, Section 9 prohibits

“[p]reference . . . given by any Regulation of Commerce or

Revenue to the Ports of one State over those of another.” U.S.

Const. art. I, § 9, cl. 6. State Petitioners argue that these textual

44

provisions do not suggest the absence of a general equal

sovereignty limit on Article I. As they point out, these

provisions speak only to whether Congress can treat states

differently when Congress itself does the legislating, not

whether Congress can allow some but not other states to

exercise the sovereign authority to legislate on an issue. That

is, the provisions guarantee the states equal treatment for only

specific subjects rather than equal sovereignty for only those

subjects. The key for present purposes, however, is that even

though the Founders plainly knew how to include equality-

based protections for states in Article I when they wished to,

they did not include any mention of State Petitioners’ broad

equal sovereignty principle. The fact that some constitutional

clauses explicitly contain an equality-based guarantee

therefore supports a negative inference—though perhaps only

a mild one—that the Commerce Clause is not so constrained.

There are, of course, “constitutional doctrines that are not

spelled out in the Constitution but are nevertheless implicit in

its structure and supported by historical practice,” such as the

doctrine of state sovereign immunity. Franchise Tax Bd. v.

Hyatt, 139 S. Ct. 1485, 1498–99 (2019). That category also

includes limits on the Commerce Clause, such as the Tenth

Amendment anticommandeering doctrine, which are supported

by the historical context in which our federal structure was

created. See New York v. United States, 505 U.S. 144, 163–66

(1992) (discussing founding era debates supporting the

anticommandeering doctrine). The evidence the parties

provide from the founding era, however, does not show that

State Petitioners’ version of the equal sovereignty principle has

a comparable historical pedigree. It is true, as State Petitioners

urge, that the general subject of state sovereignty and the states’

relation to each other and the new federal government was a

core focus at the founding. Despite that focus, however, State

Petitioners have identified no evidence that the Founders

45

contemplated the type of inviolable equal state sovereignty

State Petitioners ask us to announce.

The equal sovereignty debate at the founding centered on

how states would be represented in Congress, with the smaller

states arguing for equal representation for each state and the

larger states seeking “equality for each voter” in the form of

proportional representation. See Wesberry v. Sanders, 376

U.S. 1, 11–14 (1964) (summarizing the Great Compromise

debates); Letter from James Madison to Thomas Jefferson

(Oct. 24, 1787), in 12 The Papers of Thomas Jefferson 270, 279

(Julian P. Boyd ed., 1955) (discussing how the “little States

insisted on retaining their equality in both branches” while the

“large states . . . urged that as the new Government was to be

drawn principally from the people immediately”). For

example, New Jersey delegate William Paterson used the

concept of “equal sovereignty” to support his argument for a

single legislative chamber with an equal vote for each state.

Wesberry, 376 U.S. at 11 (citing 3 The Records of the Federal

Convention of 1787, at 251 (Max Farrand ed., 1911)).

Eventually, these debates led to the Great Compromise, which

established two forms of equality central to Article I: “equal

sovereignty” in the Senate in the form of equal representation

for each state and equal representation for each voter in the

House in the form of proportional representation. U.S. Const.

art. I, §§ 2, 3; see also The Federalist No. 39, at 255 (James

Madison) (Jacob E. Cooke ed., 1961). The Founders’

preoccupation with the manner and extent of state equality

under the Constitution also appears to have yielded the specific

equality-based limits on Congress’s legislative authority

discussed above. If the Constitution also contained State

Petitioners’ fundamental yet unstated limit on Congress’s

authority to legislate, one would expect ample historical

evidence of that limit at the founding. State Petitioners point

us to none. Cf. New York, 505 U.S. at 163–66.

46

In fact, as State Petitioners admit, the Constitution

includes one provision that expressly allows Congress to

enhance the sovereign authority of some states without

granting that authority equally to all states. State Pet. Reply

Br. 10. Article I, Section 10 provides that “No State shall,

without the Consent of Congress, lay any Duty of Tonnage,

keep Troops, or Ships of War in time of Peace, enter into any

Agreement or Compact with another State, or with a foreign

Power.” U.S. Const. art. I, § 10, cl. 3. That is, Congress has

the power to grant individual states greater authority to, for

example, assess taxes and even enter compacts with foreign

powers—indisputably elements of “sovereignty”—without

extending the same authority to other states. See Wheeling, P.

& C. Transp. Co. v. City of Wheeling, 99 U.S. 273, 283 (1878)

(“Taxation, beyond all doubt, is the exercise of a sovereign

power . . . .”); Cuyler v. Adams, 449 U.S. 433, 440 (1981)

(compacts necessarily “tend[] to the increase of political

power” for the states (quoting U.S. Steel Corp. v. Multistate

Tax Comm’n, 434 U.S. 452, 468 (1978))). Early Congresses

used Article I, Section 10 in this very manner, granting specific

states legislative authority to impose tonnage duties. See, e.g.,

Act of Feb. 9, 1791, ch. 5, 1 Stat. 190 (consenting to Maryland

statute imposing duty at Port of Baltimore); Act of Aug. 11,

1790, ch. 43, 1 Stat. 184 (consenting to Georgia, Maryland, and

Rhode Island statutes imposing tonnage duties). If this

provision were—as State Petitioners would have it—a limited

exception to an otherwise generally applicable equal

sovereignty guarantee implicit in the Constitution, we would

expect to see some founding era discussion of how the

provision interacts with that broader equal sovereignty

principle. Yet State Petitioners identify no evidence of that

either.

The only affirmative support State Petitioners identify for

their theory comes from law of nations principles. They argue

that the Founders expected international law of nations

47

principles to govern the states and that those principles

included a notion of equal sovereignty that would render

federal legislation unconstitutional if it treated states

differently. State. Pet. Br. 18; State Pet. Reply Br. 12 (“At the

founding, the law of nations entitled all sovereigns to perfect

equality.” (internal quotation marks omitted)). That argument

is unpersuasive. International law contained no analog for the

relation in our constitutional system between the federal

government and the states, and so it would be surprising if the

law of nations dictated limits on Congress’s authority in

relation to the states. And, as it turns out, the Supreme Court

has effectively explained that the Constitution’s Supremacy

Clause defeats State Petitioners’ reasoning. In Gibbons, the

Court held that while states may have equal sovereign authority

to regulate commerce in the absence of federal action, that

authority is “subjected . . . to the superior power of Congress”

when Congress acts. 22 U.S. at 70. Indeed, the Gibbons Court

cited the very same law of nations principles that State

Petitioners rely on, but only to describe the relationship

between the states when Congress has not acted pursuant to its

commerce power. Id. at 69–70. No case since Gibbons has

said otherwise.

The nature and extent of equality between the states has

been a central debate throughout our country’s history, from

the founding to the admission of new states and beyond. But

State Petitioners point us to no meaningful support for their

novel request to apply the equal sovereignty principle as a

categorical limit on Congress’s power to regulate interstate

commerce. The First and Third Circuits—the only appellate

courts to have considered similar arguments—have found

Shelby County’s discussion of the equal sovereignty principle

inapplicable to Commerce Clause and Spending Clause

legislation for similar reasons. See NCAA, 730 F.3d at 238–39

(Commerce Clause); Mayhew, 772 F.3d at 95 (Spending

Clause).

48

Section 209(b) is subject to the rational basis review

normally applied to Commerce Clause legislation. See Hodel,

452 U.S. at 276–77. And because State Petitioners present no

argument that Section 209(b) or the waiver at issue cannot

survive that review, we reject their constitutional challenge.

State Petitioners’ request to set aside the Administrator’s

decision on these grounds is denied.

So ordered.