Petition for Writ of Certiorari — Ohio, et al., Petitioners v. Environmental Protection Agency, et al.

No. _____

In the Supreme Court of the United States

______________________________

STATE OF OHIO, ET AL.

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

DAVE YOST

Ohio Attorney General

MICHAEL J. HENDERSHOT *

*Counsel of Record

Chief Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

michael.hendershot@ohioago.gov

Counsel for Petitioner

State of Ohio

(additional counsel listed at the end)

QUESTION PRESENTED

Over a century ago, this Court remarked that “the

whole Federal system is based upon the fundamental

principle of the equality of the states under the Constitution.” Bolln v. Nebraska, 176 U.S. 83, 89 (1900).

It continued: “The idea that one state is debarred,

while the others are granted, the privilege of amending their organic laws to conform to the wishes of their

inhabitants, is so repugnant to the theory of their

equality under the Constitution that it cannot be entertained even if Congress had power to make such

discrimination.” Id. Are those words just a fin de siècle sentiment, or do they endure today?

The Question Presented is: May Congress pass a

law under the Commerce Clause that empowers one

State to exercise sovereign power that the law denies

to all other States?

ii

LIST OF PARTIES

The petitioners are the States of Ohio, Alabama,

Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, and West Virginia.

The respondents are the U.S. Environmental Protection Agency and Michael S. Regan, Administrator

of the U.S. Environmental Protection Agency.

Additional respondents, and intervenors below,

are Ford Motor Company, Volkswagen Group of

America, Inc., American Honda Motor Co., Inc., BMW

of North America, LLC, Volvo Car USA LLC, New

York Power Authority, National Grid USA, Calpine

Corporation, Advanced Energy Economy, Power Companies Climate Coalition, National Coalition for Advanced Transportation, District of Columbia, State of

Washington, State of New Jersey, State of Maine,

State of Hawaii, State of Illinois, State of Maryland,

State of Colorado, State of Nevada, State of New York,

State of Connecticut, State of Vermont, State of Rhode

Island, State of North Carolina, State of California,

State of New Mexico, State of Minnesota, State of Delaware, State of Oregon, Commonwealth of Pennsylvania, Commonwealth of Massachusetts, City of New

York, City of Los Angeles, Clean Air Council, Natural

Resources Defense Council, Public Citizen, Center for

Biological Diversity, Environmental Defense Fund,

Sierra Club, National Parks Conservation Association, Union of Concerned Scientists, Conservation

Law Foundation, and Environmental Law and Policy

Center.

iii

LIST OF DIRECTLY RELATED PROCEEDINGS

1. This case began as petitions for review in the D.C.

Circuit. That case is Ohio, et al. v. EPA, et al., Nos.

22-1081, 22-1083, 22-1084, 22-1085 (D.C. Cir.

April 9, 2024).

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PARTIES .....................................................ii

LIST OF DIRECTLY RELATED

PROCEEDINGS .................................................. iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTIONAL STATEMENT ............................ 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................... 4

STATEMENT .............................................................. 6

REASONS FOR GRANTING THE WRIT ................. 9

I.

The Court should review the D.C.

Circuit’s judgment because it clashes with

the Constitution’s structure and history,

and with this Court’s most relevant

precedents. ................................................... 10

A.

This case fits the mold of many recent

cases that evaluate unanswered

questions of constitutional structure,

including the relationship of the

federal government to the States and

the States to each other. ........................ 10

B.

The D.C. Circuit’s judgment conflicts

with the Constitution’s design. .............. 11

v

C.

II.

The D.C. Circuit’s judgment conflicts

with this Court’s most analogous

precedent. ............................................... 21

This case raises an important question of

constitutional structure that many States

have raised, and here occurs in the

important context of environmental

regulation..................................................... 25

III. This is an ideal vehicle to address the

Question Presented. .................................... 28

A.

This case is a good vehicle because the

States claim only equal sovereignty,

not equal results..................................... 28

B.

This case is a good vehicle because the

States press the alternative argument

that the California Waiver is

unconstitutional as applied here. .......... 31

C.

Several other features of the case

advise a grant. ........................................ 33

CONCLUSION.......................................................... 36

APPENDIX:

Appendix A: Opinion, United States Court of

Appeals for the District of Columbia Circuit,

April 9, 2024 .............................................................. 1a

Appendix B: 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. 14332 (March 14, 2022) .................................. 55a

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) ....................................... 15, 17

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................. 34

Allen v. Cooper,

589 U.S. 248 (2020) ............................................. 11

Am. Auto. Mfrs. Ass’n v. Cahill,

152 F.3d 196 (2d Cir. 1998) ............................... 3, 6

Arizona v. United States,

567 U.S. 387 (2012) ............................................. 19

Ass’n of Int’l Auto. Mfrs. v. Comm’r,

Mass. Dep’t Env’t Prot.,

208 F.3d 1 (1st Cir. 2000) ...................................... 3

Blatchford v. Native Vill. of Noatak,

501 U.S. 775 (1991) ............................................. 18

Bond v. United States,

564 U.S. 211 (2011) ....................................... 14, 16

Buckley v. Valeo,

424 U.S. 1 (1976) ........................................... 18, 19

Cameron v. EMW Women’s Surgical

Ctr., P.S.C.,

595 U.S. 267 (2022) ............................................. 25

Case v. Toftus,

39 F. 730 (C.C. D. Or. 1889) ................................ 22

vii

Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) ................................... 6, 33, 34

City of Rome v. United States,

446 U.S. 156 (1980) ............................................. 24

Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999) ............................................. 24

Consumer Fin. Prot. Bureau v. Cmty.

Fin. Servs. Ass’n of Am., Ltd.,

601 U.S. 416 (2024) ............................................. 10

Coyle v. Smith,

221 U.S. 559 (1911) ..................2, 15, 16, 22, 23, 30

Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363 (2000) ............................................. 19

Ctr. for Biological Diversity v. EPA,

722 F.3d 401 (D.C. Cir. 2013) ............................. 32

EEOC v. Wyoming,

460 U.S. 226 (1983) ............................................. 24

Egbert v. Boule,

596 U.S. 482 (2022) ............................................. 33

Escanaba & Lake Mich. Transp. Co. v.

Chicago,

107 U.S. 678 (1883) ............................................. 22

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ............................................. 18

viii

Franchise Tax Bd. of Cal. v. Hyatt,

578 U.S. 171 (2016) ............................. 2, 15, 20, 33

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ........................... 10, 15, 20, 33

Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd.,

561 U.S. 477 (2010) ....................................... 18, 20

Freytag v. Comm’r of Internal Revenue,

501 U.S. 868 (1991) ............................................. 18

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................. 16, 17, 24

Gundy v. United States,

588 U.S. 128 (2019) ............................................. 19

H. P. Hood & Sons, Inc. v. Du Mond,

336 U.S. 525 (1949) ............................................. 27

INS v. Chadha,

462 U.S. 919 (1983) ............................................. 18

Larkin v. Grendel’s Den, Inc.,

459 U.S. 116 (1982) ............................................. 18

Lucia v. SEC,

585 U.S. 237 (2018) ............................................. 18

Mallory v. Norfolk S. Ry. Co.,

600 U.S. 122 (2023) ............................................... 1

Martin v. Hunter’s Lessee,

1 Wheat 304 (1816) .............................................. 13

ix

Massachusetts v. EPA,

549 U.S. 497 (2007) ....................................... 32, 34

Mayhew v. Burwell,

772 F.3d 80 (1st Cir. 2014) .................................. 26

McCulloch v. Maryland,

4 Wheat. 316 (1819) ....................................... 12, 15

Miller v. Johnson,

515 U.S. 900 (1995) ............................................. 18

Mistretta v. United States,

488 U.S. 361 (1989) ............................................. 18

Murphy v. NCAA,

584 U.S. 453 (2018) ........................3, 12, 13, 19, 20

Nat’l Collegiate Athletic Ass’n v.

Governor of N.J.,

730 F.3d 208 (3d Cir. 2013) ................................. 26

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ............................................. 26

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023) ............................... 1, 3, 27, 28

Nevada v. Watkins,

914 F.2d 1545 (9th Cir. 1990) ............................. 26

New York v. United States,

505 U. S. 144 (1992) ............................................ 20

New York v. Yellen,

15 F.4th 569 (2d Cir. 2021) ........................... 26, 29

x

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ............................................. 21

Nw. Austin Mun. Util. Dist. No. One v.

Holder,

557 U.S. 193 (2009) ............................................. 23

Patchak v. Zinke,

583 U.S. 244 (2018) ............................................. 18

PennEast Pipeline Co., LLC v. New

Jersey,

594 U.S. 482 (2021) ............................................. 11

Pollard v. Hagan,

44 U.S. 212 (1845) ............................................... 21

Principality of Monaco v. Mississippi,

292 U.S. 313 (1934) ............................................. 15

Printz v. United States,

521 U.S. 898 (1997) ....................................... 16, 20

Rehaif v. United States,

588 U.S. 225 (2019) ............................................. 34

S. Dakota v. Dole,

483 U.S. 203 (1987) ............................................. 26

Sec’y of Agric. v. Cent. Roig Ref. Co.,

338 U.S. 604 (1950) ............................................. 30

Seila L. LLC v. Consumer Fin. Prot.

Bureau,

591 U.S. 197 (2020) ............................................. 10

xi

Seminole Tribe v. Florida,

517 U.S. 44 (1996) ............................................... 24

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) ..............2, 4, 23, 24, 25, 30, 31

Sherman v. Cmty. Consol. Sch. Dist. 21

of Wheeling Twp.,

980 F.2d 437 (7th Cir.1992) ................................ 34

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ............................................. 24

Or. ex rel. State Land Bd. v. Corvallis

Sand & Gravel Co.,

429 U.S. 363 (1977) ............................................. 22

Stearns v. Minnesota,

179 U.S. 223 (1900) ....................................... 22, 29

Stern v. Marshall,

564 U.S. 462 (2011) ............................................. 18

Texas v. White,

7 Wall. 700 (1868) .......................................... 16, 17

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022) ....................................... 11, 12

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ....................................... 13, 16

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ................................................. 10

United States v. Morrison,

529 U.S. 598 (2000) ............................................. 14

xii

United States v. Nixon,

418 U.S. 683 (1974) ............................................. 18

United States v. Oakland Cannabis

Buyers’ Coop.,

532 U.S. 483 (2001) ............................................. 25

United States v. Texas,

339 U.S. 707 (1950) ............................. 2, 22, 29, 30

United States v. Windsor,

570 U.S. 744 (2013) ............................................. 17

Virginia v. West Virginia,

246 U.S. 565 (1918) ............................................. 20

Washington v. Davis,

426 U.S. 229 (1976) ............................................. 29

World–Wide Volkswagen Corp. v.

Woodson,

444 U.S. 286 (1980) ............................................. 20

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) ............................................. 33

Statutes, Rules, and Constitutional Provisions

U.S. Const. art. I, §3 ................................................. 11

U.S. Const. art. I, §8 ........................................... 13, 21

U.S. Const. art. I, §9 ................................................. 21

U.S. Const. art. I, §10 ............................................... 13

U.S. Const. art. IV, §1 ............................................... 11

xiii

U.S. Const. art. V ...................................................... 12

U.S. Const. art. VI .................................................... 13

U.S. Const. amend. X .................................................. 4

U.S. Const. amend. 13, §2 ........................................ 14

U.S. Const. amend. 14, §5 ........................................ 14

U.S. Const. amend. 15, §2 ........................................ 14

U.S. Const. amend. 19 .............................................. 14

U.S. Const. amend. 24, §2 ........................................ 14

U.S. Const. amend. 26, §2 ........................................ 14

28 U.S.C. §1254 ........................................................... 4

42 U.S.C. §7507 ........................................................... 6

42 U.S.C. §7521 ........................................................... 6

42 U.S.C. §7543 ........................................................... 6

42 U.S.C. §7545 ........................................................... 1

42 U.S.C. §7607 ......................................................... 34

73 Fed. Reg. 12,156 (Mar. 6, 2008)............................. 7

74 Fed. Reg. 32,744 (July 8, 2009) ............................. 7

78 Fed. Reg. 2,112 (Jan. 9, 2013) ............................... 7

84 Fed. Reg. 51,310 (Sept. 27, 2019) .................... 8, 32

86 Fed. Reg. 22,421 (April 28, 2021) .......................... 8

xiv

86 Fed. Reg. 74,236 (Dec. 29, 2021) ........................... 9

87 Fed. Reg. 14,332 (Mar. 14, 2022)....................... 4, 9

Cal. Code Regs., tit. 13, §§1900–61, Register 2005, No. 37 (Sept. 15, 2005) ........................ 6

Sup. Ct. Rule 10 .......................................................... 2

Other Authorities

Advanced Clean Cars Summary,

California Air Resources Board ............................ 7

Akhil Reed Amar & Neal Kumar

Katyal, Executive Privileges and

Immunities: The Nixon and Clinton

Cases, 108 Harv. L. Rev. 701 (1995) ................... 21

Anthony J. Bellia & Bradford R. Clark,

The International Law Origins of

American Federalism, 120 Colum. L.

Rev. 835 (2020) .............................................. 12, 14

Clarence Thomas, Why Federalism

Matters, 48 Drake L. Rev. 231 (2000) ........... 16, 17

EPA’s Reconsideration of a Previous

Withdrawal of a Waiver of

Preemption; Notice of Decision .............................. 4

Evan H. Caminker, State Sovereignty

and Subordinacy: May Congress

Commandeer State Officers to

Implement Federal Law?, 95 Colum.

L. Rev. 1001, 1006 n.13 (1995) ............................ 24

xv

Frank H. Easterbrook, Formalism,

Functionalism, Ignorance, Judges,

22 Harv. J. Law & Pub. Pol’y 13

(1998) ................................................................... 20

Juliet Eilperin and Brandy Davis,

Major automakers strike climate deal

with California, rebuffing Trump on

proposed mileage freeze, Washington

Post (July 25, 2019) ............................................. 28

Leah Littman, Inventing Equal

Sovereignty, 114 Mich. L. Rev. 1207

(2016) ..................................................................... 4

Order, Doc. No. 1862459, Union of

Concerned Scientists v. NHTSA,

No. 19-1230 (D.C. Cir. Sept. 21,

2020)....................................................................... 8

Order, Doc. No. 1884115, Union of

Concerned Scientists v. NHTSA,

No. 19-1230 (D.C. Cir. Feb. 8, 2021) ..................... 8

Order, Doc. No. 2053775, Union of

Concerned Scientists v. NHTSA,

No. 19-1230 (D.C. Cir. May 10, 2023) ................... 8

Pat Howard, Best & worst states for climate change, Policygenius (Oct. 5,

2022)..................................................................... 32

S. Rep. No. 91-1196, 32 (Sept. 17, 1970) .................... 6

xvi

Sonia Sotomayor de Noonan (Note),

Statehood and the Equal Footing

Doctrine: The Case for Puerto Rican

Seabed Rights, 88 Yale L.J. 825

(1979) ................................................................... 17

Thomas B. Colby, In Defense of the

Equal Sovereignty Principle, 65

Duke L. J. 1087 (2016) ........................................ 29

Valerie J.M. Brader, Congress’ Pet: Why

the Clean Air Act’s Favoritism of California is Unconstitutional Under the

Equal Footing Doctrine, 13 Hastings

Env’t L. J. 119 (2007) .......................................... 29

Vicki C. Jackson, Federalism and the

Uses and Limits of Law: Printz and

Principle?, 111 Harv. L. Rev. 2180

(1998) ................................................................... 24

Zachary S. Price, NAMUDNO’s NonExistent Principle of State Equality,

88 N.Y.U. L. Rev. Online 24 (2013) ...................... 4

INTRODUCTION

The Golden State is not the golden child. Yet in

the Clean Air Act, Congress elevated California above

all the other States by giving to the Golden State alone

the power to pass certain environmental laws. See,

e.g., 42 U.S.C. §7545(c)(4). This case asks whether, as

part of the plan of the convention, the States surrendered their equal sovereignty as to each other even as

they—quite explicitly—surrendered some of the sovereignty to the new national government. The answer

is no, and this case presents an excellent vehicle in

which to answer the question.

First and foremost, this case gives the Court a

chance to correct the D.C. Circuit’s grave error in concluding that Congress can play favorites among the

States. That conclusion is hard to square with the

plan of the convention and the most relevant statements in this Court’s precedents. The Court should

grant certiorari to consider the question in depth.

The States, of course, surrendered some of their

sovereignty to the federal government as part of the

plan of the convention. But the question posed in this

case is whether the State’s surrendered their equal

sovereignty as to what they retained. That is, did the

States agree that the federal government can—in

those spheres in which it can override State sovereignty—override only some States’ sovereignty and

not others? To ask is to answer. Yet the D.C. Circuit

saw no problem with a federal law that exempts California, and only California, from the Clean Air Act’s

preemptive sweep. It is one thing for a State’s voters

to pass a law that has effect elsewhere—see, e.g., Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023); Nat’l

Pork Producers Council v. Ross, 598 U.S. 356 (2023)—

2

but it is quite another for Congress to give one State’s

voters a power it denied to the voters in the other 49.

The D.C. Circuit thus made a critical error as to a critically important federal question. See Rule 10(c).

The D.C. Circuit’s judgment is incompatible with

core constitutional principles because no State is more

equal than the others. And Congress does not have

the general power to elevate one State above the others. The Union “was and is a union of states, equal in

power, dignity, and authority, each competent to exert

that residuum of sovereignty not delegated to the

United States by the Constitution itself.” Coyle v.

Smith, 221 U.S. 559, 567 (1911). The “‘constitutional

equality’ among the States,” Franchise Tax Bd. of Cal.

v. Hyatt, 578 U.S. 171, 179 (2016), includes a mandate

of equal treatment at admission to the Union, but also

“remains highly pertinent in assessing subsequent

disparate treatment of States.” Shelby Cnty. v.

Holder, 570 U.S. 529, 544 (2013). The equal-treatment mandate prohibits treating one State less favorably than others. See, e.g., Coyle, 221 U.S. at 567. It

also prohibits treating one State more favorably: it

stops Congress, that is, from passing any “special limitation of any of the paramount powers of the United

States in favor of a State.” United States v. Texas, 339

U.S. 707, 717 (1950). The D.C. Circuit’s holding destroys the Constitution’s restraint on Congress’s

power to discriminate among the States as to their retained sovereign power.

Several other features of this case make it an ideal

vehicle to resolve Congress’s Article I power to confer

more sovereign power on one State than all the rest.

3

First, many States have long wanted an answer to

the Question Presented. This petition includes 17 petitioning States. And four States not in the current

coalition have previously raised equal-sovereignty objections to other laws that distinguish among the

States.

Second, the question arises in a highly consequential context as it asks whether any State other than

California can regulate vehicle emissions. Other

States have tried to regulate as California does, but

federal law stands in the way. See Am. Auto. Mfrs.

Ass’n v. Cahill, 152 F.3d 196, 201 (2d Cir. 1998) (New

York); Ass’n of Int’l Auto. Mfrs. v. Comm’r, Mass. Dep’t

Env’t Prot., 208 F.3d 1, 8 (1st Cir. 2000) (Massachusetts). And California’s vast economy means that

whatever regulations California imposes will likely

set the market for the rest of the nation. See, e.g.,

Ross, 598 U.S. at 405 (Kavanaugh, J., concurring in

part and dissenting in part).

Third, this case gives the Court its best chance to

address the equal-sovereignty doctrine outside the

context of Reconstruction Amendment legislation.

Perhaps the two most prominent violations of equal

sovereignty outside that context are the Clean Air Act

provision challenged here and Nevada’s special status

for sports betting. This Court has already—though on

different grounds—eliminated the Silver State’s special status. See Murphy v. NCAA, 584 U.S. 453, 462,

473–74 (2018). Another case to test the equal-sovereignty doctrine may be a long time coming. The time

to evaluate the doctrine is now, and in this case.

Finally, this case gives the Court a chance to address the criticism that the doctrine reaffirmed in

Shelby County lacks deep constitutional roots. See,

4

e.g., Shelby Cnty., 570 U.S. at 588 (Ginsburg, J., dissenting); see generally Leah Littman, Inventing Equal

Sovereignty, 114 Mich. L. Rev. 1207 (2016); Zachary S.

Price, NAMUDNO’s Non-Existent Principle of State

Equality, 88 N.Y.U. L. Rev. Online 24 (2013). The petitioning States press only a single question here: do

the States retain equal sovereignty with respect to

each other? It therefore offers an ideal vehicle for the

parties to debate the grounding and extent of that doctrine unburdened by any other questions.

OPINIONS BELOW

This case originated in the D.C. Circuit. That

Court rejected Ohio’s and sixteen other States’ petition for review. The decision is reported at 98 F.4th

288 (D.C. Cir. 2024).

JURISDICTIONAL STATEMENT

The D.C. Circuit rejected the Ohio’s petition for review of the EPA’s Reconsideration of a Previous

Withdrawal of a Waiver of Preemption; Notice of

Decision, on April 9, 2024. See 87 Fed. Reg. 14,332

(Mar. 14, 2022); Pet. App. 55a. This Petition timely

invokes this Court’s jurisdiction under 28 U.S.C.

§1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Tenth Amendment reads:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively,

or to the people.

U.S. Const. amend. X.

5

The California Waiver of Preemption Provision

reads:

(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 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

6

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.

42 U.S.C. §7543(b).

STATEMENT

1. The Clean Air Act requires the EPA’s Administrator to prescribe “standards applicable to the emission of any air pollutant from any class or classes of

new motor vehicles or new motor vehicle engines,

which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. §7521(a)(1).

One provision of the Act preempts the States from setting emission standards for new cars and new engines.

§7543(a); see also id. §7543(e)(1).

The Act makes two exceptions to its preemptive

scope. First, the Waiver Provision allows the EPA to

give California—and only California—a waiver allowing that State to set emission standards more stringent than the federal standards. §7543(b)(1); S. Rep.

No. 91-1196, 32 (Sept. 17, 1970). Second, the Act allows States with air quality below federal standards

to adopt emission standards “identical to the

California standards.” 42 U.S.C. §7507(1); see also id.

§7543(e)(2)(B)(i) (similar exception for non-road

vehicles or engines). Thus, “the 49 other states” may

depart from the federal standard if and only if they

adopt “a standard identical to an existing California

standard.” Cahill, 152 F.3d at 201.

2. California first adopted greenhouse-gas regulations pertaining to vehicles in 2005. Cal. Code Regs.,

7

tit. 13, §§1900–61, Register 2005, No. 37 (Sept. 15,

2005). Shortly thereafter, it asked for a preemption

waiver under the Clean Air Act. See California State

Motor Vehicle Pollution Control Standards; Notice of

Decision Denying a Waiver, 73 Fed. Reg. 12,156 (Mar.

6, 2008). The EPA initially denied the waiver. Id. But

it soon reconsidered and, for the first time ever, issued

a waiver allowing California to set standards related

to fuel economy. California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting

a Waiver, 74 Fed. Reg. 32,744 (July 8, 2009).

In 2012, California adopted its Advanced Clean

Car regulations. Those regulations comprise two programs relevant here: the Low Emission Vehicles program, and the Zero Emission Vehicles program. The

first consists of regulations that, applied to model

years 2017 through 2025, were designed to reduce carbon-dioxide emissions by approximately 34 percent.

Advanced Clean Cars Summary, California Air Resources Board at 5, https://perma.cc/8282-HLBL. The

second requires manufacturers to ensure that, by

2025, at least 15.4 percent of their California sales

consisted of zero-emission vehicles and plug-in hybrids. Id. at 13.

Because both programs set emission standards

more stringent than those set by federal law, California needed a Clean Air Act waiver. It sought a waiver

in June 2012. And the EPA eventually issued a

waiver for California’s two programs. California State

Motor Vehicle Pollution Control Standards; Notice of

Decision Granting a Waiver, 78 Fed. Reg. 2,112 (Jan.

9, 2013).

3. The agency withdrew that waiver in 2019. The

Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule

8

Part One: One National Program, 84 Fed. Reg. 51,310,

51,338, 51,350 (Sept. 27, 2019). California and others

challenged the rule. Ohio, along with other States, intervened to defend the EPA’s withdrawal decision on

the ground that the Constitution compelled it. They

argued that §209(b) violates the Constitution by allowing California alone to regulate new-car emission

standards, making any waiver issued under that section unenforceable. See generally Br. of Intervenors,

Doc. No. 1862459, Union of Concerned Scientists v.

NHTSA, No. 19-1230 (D.C. Cir. Sept. 21, 2020).

That case remains pending because the future of

the 2019 withdrawal is now uncertain. After the EPA

withdrew California’s waiver, it received petitions for

reconsideration. See Reconsideration of a Previous

Withdrawal of a Waiver of Preemption; Opportunity

for Public Hearing and Public Comment, 86 Fed. Reg.

22,421, 22,427–28 (April 28, 2021). Soon after President Biden took office, the EPA purported to accept

those invitations and posted an opportunity to comment on its reconsideration of the 2019 action. Id. at

22,421. The EPA asked the D.C. Circuit to stay the

litigation challenging the 2019 actions pending their

reconsideration. The Court granted the request. Order, Doc. No. 1884115, Union of Concerned Scientists

v. NHTSA, No. 19-1230 (D.C. Cir. Feb. 8, 2021). (That

case remains pending, although the D.C. Circuit has

held the case in abeyance while Ohio and others petition this Court for review in this case. See id., Order

No. 2053775 (May 10, 2023.))

4. After receiving comments, the EPA rescinded

the 2019 action. See Reconsideration of a Previous

Withdrawal of a Waiver of Preemption; Notice of

Decision, 87 Fed. Reg. 14,332 (Mar. 14, 2022);

Corporate Average Fuel Economy (CAFE) Preemption,

9

86 Fed. Reg. 74,236 (Dec. 29, 2021) (NHTSA). Most

relevant here, the EPA fully reinstituted the 2013

waiver for California’s Advanced Clean Car program.

During the comment period, the States submitted

comments warning the EPA that reinstating the wavier would present equal-sovereignty issues. The EPA

decided it should not consider those comments on the

ground that “the constitutionality of section 209 is not

one of the three statutory criteria for reviewing waiver

requests.” Pet. App. 279a.

5. Ohio and several other States challenged the

Rule in the D.C. Circuit. Addressing the equal-sovereignty arguments, the court concluded that Ohio and

its co-petitioning States had standing to challenge

California’s waiver because “vacating the waiver

would redress the claimed constitutional injury.” Pet.

App. 40a. But on the merits, the court rejected both

equal-sovereignty arguments. As to the argument

that equal sovereignty categorically bars Congress

from delegating differential sovereignty to the States

under the Commerce Clause, the D.C. Circuit held

that the Constitution contains no “bar against Congress leaving states with different levels of sovereign

authority even in the traditionally state-dominated”

fields. Id. 45a–46a. As to the argument that equal

sovereignty means—at least—that the California

Waiver Provision flunks Shelby County’s sufficient-relationship test, the D.C. Circuit held that Ohio and its

co-party States forfeited that argument. Id. 42a.

REASONS FOR GRANTING THE WRIT

The D.C. Circuit gave the wrong answer to a question about the basic structure of our federal system.

That alone merits certiorari review. What is more, the

10

States have long wanted this question answered, and

this time the question arises in the critically important context of States’ power to pass environmental regulations. Finally, the question is squarely presented for this Court’s consideration.

I.

The Court should review the D.C. Circuit’s

judgment because it clashes with the

Constitution’s structure and history, and

with

this

Court’s

most

relevant

precedents.

This brief starts with the D.C. Circuit’s error because the many ways that Court’s judgment conflicts

with the Constitution shows why certiorari is warranted here.

A. This case fits the mold of many recent

cases that evaluate unanswered questions

of constitutional structure, including the

relationship of the federal government to

the States and the States to each other.

Like many other recent cases on this Court’s

docket, this case involves a core question about the

Constitution’s basic structure. See, e.g., Consumer

Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am.,

Ltd., 601 U.S. 416, 420–24 (2024); United States v. Arthrex, Inc., 594 U.S. 1, 6 (2021); Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 202–03 (2020);

Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. 230, 236

(2019).

Because the status of the States in relation to the

federal government is both a foundational premise of

the Republic and an enduring question with many facets, it is no surprise that this Court frequently hears

cases about whether the States retained sovereignty

11

or surrendered it when ratifying the Constitution.

See, e.g., PennEast Pipeline Co., LLC v. New Jersey,

594 U.S. 482, 499–500 (2021); Torres v. Tex. Dep’t of

Pub. Safety, 597 U.S. 580, 584 (2022); Allen v. Cooper,

589 U.S. 248, 255–59 (2020). This case is of a piece.

Like those recent cases, this one asks whether the

States surrendered one aspect of sovereignty in the

plan of the convention. The twist here is that the

question about surrender is a relative one; it is not, as

in recent cases, whether all the States gave up sovereign immunity, but whether the States gave up the

right to equal treatment vis-à-vis the other States.

Even if the D.C. Circuit reached the right answer,

the Question Presented calls out for this Court’s answer.

B. The D.C. Circuit’s judgment conflicts with

the Constitution’s design.

The opinion below shows that review is warranted

because the D.C. Circuit’s judgment cannot be

squared with the Constitution’s basic design. The

original plan of the Constitution requires equal State

sovereignty for several reasons.

1. For starters, many parts of the Constitution

treat the States as equals. The Full Faith and Credit

Clause requires each States to give equal respect to

other States’ judgments. U.S. Const. art. IV §1.

States are equally represented in the Senate. Id. art.

I §3, cl. 1. And the States have an equal voice in

amending the Constitution. Id. art. V. Collectively,

these provisions signal that State equality is a bedrock premise of the Constitution. Cf. Torres, 597 U.S.

at 590; McCulloch v. Maryland, 4 Wheat. 316, 414–15

(1819).

12

2. The same equality of States is evident in the

Constitution’s use of the word State to describe the

sovereigns that retained power in the federal design.

“By using the term ‘States,’ the Constitution recognized the traditional sovereign rights of the States minus only those rights that they expressly surrendered

in the document.’” Anthony J. Bellia & Bradford R.

Clark, The International Law Origins of American

Federalism, 120 Colum. L. Rev. 835, 938 (2020). That

conclusion flows from the background to the Constitution’s ratification.

When the States declared their independence from

Britain, “they claimed the powers inherent in sovereignty—in the words of the Declaration of Independence, the authority ‘to do all … Acts and Things which

Independent States may of right do.’” Murphy, 584

U.S. at 470 (quoting Declaration of Independence

¶32). One key aspect of the sovereignty possessed by

the States was their “equal sovereignty.” Bellia &

Clark, International Law Origins, 120 Colum. L. Rev.

at 935. The “law of nations” established that “‘Free

and Independent States’ were entitled to the ‘perfect

equality and absolute independence of sovereigns.’”

Id. at 937 (quoting Schooner Exchange v. McFaddon,

7 Cranch 116, 137 (1812)). “The notion of a ‘State’

with fewer sovereign rights than another ‘State’ was

unknown to the law of nations.” Id. at 937–38; see also

C. Phillipson, Wheaton’s Elements of International

Law 261 (5th ed. 1916) (recognizing that sovereigns

"enjoy equality before international law”). And the

States would have understood themselves to possess

this fundamental aspect of sovereignty.

When the new Constitution divided sovereign authority between the States and the federal government, some provisions “limited … the sovereign

13

powers of the States.” Murphy, 584 U.S. at 470. For

example, the Constitution gave the federal government exclusive authority over some matters, see U.S.

Const., art. I, §8, cl.4, restricted state authority over

others, id., art. I, §10, and made validly enacted federal laws “the supreme Law of the Land,” id., art. VI,

cl.2. But these changes did not abolish the States’ sovereignty; to the contrary, the States “retained ‘a residuary and inviolable sovereignty.’” Murphy, 584 U.S.

at 470 (quoting The Federalist No. 39 (J. Madison)).

It has always been “perfectly clear that the sovereign

powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.” Martin v. Hunter's

Lessee, 1 Wheat. 304, 325 (1816). As explained at the

time of ratification, because “the plan of the convention aim[ed] only at a partial union or consolidation,

the State governments … clearly retain[ed] all the

rights of sovereignty which they before had, and which

were not, by that act, EXCLUSIVELY delegated to the

United States.” Federalist No. 32 (A. Hamilton). The

Tenth Amendment “unambiguously confirms this

principle,” U.S. Term Limits, Inc. v. Thornton, 514

U.S. 779, 801 (1995), so the States and the People retained all powers not expressly surrendered in the

Constitution.

The right to sovereign equality is not among the

rights surrendered. While the Constitution limited

the States’ sovereignty in some ways, it nowhere took

from the States their sovereign equality. Thus, the

States retained that equality. Bellia & Clark, International Law Origins, 120 Colum. L. Rev. at 937–38.

If anything, the discussion around the time of the convention included a push for new States added after the

14

original thirteen to be governed “as provinces” and allowed “no voice in our councils.” 3 The Life of Gouverneur Morris, with Selections from His Correspondence

and Miscellaneous Papers 192 (1832). In the face of

such sentiment, the Constitution’s bare use of “States”

to describe the political sovereignty of the preexisting

political units that formed the union is best read to

incorporate the principle of equal sovereignty of those

entities.

The States’ sovereign equality remained complete

until the Civil War Amendments. Those Amendments

all permit Congress to enforce their guarantees by

“appropriate” legislation. U.S. Const., amend. 13, §2;

amend. 14, §5; amend. 15, §2; see also amends. 19; 24

§2; 26 §2. Appropriate legislation might entail limiting the sovereign authority of only the States found to

be acting in violation of a particular amendment. See,

e.g., United States v. Morrison, 529 U.S. 598, 626–27

(2000). “Thus, by adopting these Amendments, the

States expressly … compromised their right to equal

sovereignty with regard to enforcement of the prohibitions set forth in the Amendments.” Bellia & Clark,

International Law Origins, 120 Colum. L. Rev. at 938.

But the States did not otherwise compromise their

equal sovereignty—the Amendments do not address,

and so do not alter, the States’ equal sovereignty in

contexts unrelated to the prohibitions and guarantees

of these Amendments. Outside of that special context,

if one State could authorize conduct preempted in the

other 49, then the preempted States do not retain the

“residual sovereignty,” Bond v. United States, 564

U.S. 211, 221 (2011), contemplated by the Constitution that makes them States.

This history is why the Court has described the

“union of States” as “equal in power, dignity, and

15

authority” with each State “competent to exert that

residuum of sovereignty not delegated to the United

States by the Constitution itself.” Coyle, 221 U.S. at

567.

3. Beyond these explicit signals, the Constitution’s

overall design rests on State sovereign equality.

This sovereign equality is one of the Constitution’s implicit building blocks. The “plan of the Constitution”

operates “[b]ehind the words” of the document’s text.

Principality of Monaco v. Mississippi, 292 U.S. 313,

322–23 (1934). Many restraints beneath the words

are “implicit in the constitutional design” because the

“bare text” is not an “exhaustive description” of the

Constitution’s limits on national power. Alden v.

Maine, 527 U.S. 706, 730, 736 (1999); McCulloch, 4

Wheat. at 435–37. Those doctrines are “not spelled

out in the Constitution but are nevertheless implicit”

in its overarching design. Franchise (2019), 587 U.S.

at 247. Those implied doctrines include cornerstones

of the constitutional structure, such as intergovernmental tax immunity, the States’ sovereign immunity

in their own courts, and the States’ sovereign immunity in other States’ courts. Id. at 247–48. Like these

other doctrines, the equal sovereignty of the States is

an “implicit ordering of relationships within the federal system necessary to make the Constitution a

workable governing charter and to give each provision

within that document the full effect intended by the

Framers.” Id. at 237 (citation omitted).

Most basically, “the Constitution, in all its provisions, looks to an indestructible Union, composed of

indestructible States.” Texas v. White, 7 Wall. 700,

725 (1868), overruled on other grounds, Morgan v.

United States, 113 U.S. 476 (1885). If the States’ sovereign authority—the core of their statehood—could

16

be reduced unequally, then the States would be in no

relevant sense “indestructible.” Instead, they would

be subject to diminution when more politically powerful States win limits on sister States’ authority. Put

another way, the “constitutional equality of the states

is essential to the harmonious operation of the scheme

upon which the Republic was organized.” Coyle, 221

U.S. at 580. More specifically, federalism and nondelegation point to the States’ sovereign equality.

Federalism. Start with perhaps the Constitution’s

most innovative structural feature—federalism. One

of the Constitution’s core structural principles is dual

sovereignty. That is something “every schoolchild

learns.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

But perhaps one detail those grammar-school lessons

do not confer is the true “genius” of that dual sovereignty. Thornton, 514 U.S. at 838 (Kennedy, J., concurring). The genius of that structure is its ability to

“check … abuses of government power.” Gregory, 501

U.S. at 458. That check stems in part from a “diffusion of sovereign power” that fosters greater liberty

than centralized power. Bond, 564 U.S. at 221 (quotation marks omitted). But that diffusion also secures

liberty through “the tension” created “between federal

and state power.” Gregory, 501 U.S. at 459; see

Printz v. United States, 521 U.S. 898, 921 (1997). The

States, as sovereigns “create centers of political opposition that [can] control the excesses of the national

government.” Clarence Thomas, Why Federalism

Matters, 48 Drake L. Rev. 231, 237 (2000); cf. Federalist No. 26 (A. Hamilton). All of this is why the Court

said long ago that “the preservation of the States, and

the maintenance of their governments, are as much

within the design and care of the Constitution as the

preservation of the Union.” White, 7 Wall. at 726.

17

The States’ retained sovereignty under this dualsovereign structure must be an equal sovereignty if

the benefits of that structure are to retain any force.

Dual sovereignty “enhance[s]” individual freedom.

Alden, 527 U.S. at 758, 751. And that freedom-promoting feature is greatly diminished without equal

state sovereignty. For one thing, unequal States cannot serve as “centers of political opposition” to the federal government, Thomas, Federalism, 48 Drake L.

Rev. at 237, if the federal government can play favorites by diminishing the relative power of those States

that oppose federal policies. For another, unequal sovereignty lessens citizen freedom by shifting State’s attention from “competition for a mobile citizenry,”

Gregory, 501 U.S. at 458, to competition for Congress’s

favoritism. Political rent-seeking of that sort adds

nothing to States’ incentives to improve the lives of

their citizens. Because unequal sovereignty neuters

federalism, it is fair to say that equal sovereignty “ultimately rests on concepts of federalism.” Sonia Sotomayor de Noonan (Note), Statehood and the Equal

Footing Doctrine: The Case for Puerto Rican Seabed

Rights, 88 Yale L.J. 825, 835 (1979).

Non-delegation. The equal-sovereignty principle

aligns with the Constitution’s general concern with

delegating vested power. “The power the Constitution

grants it also restrains.” United States v. Windsor,

570 U.S. 744, 774 (2013). And the Constitution’s

“structural integrity” depends as much on “preventing

the diffusion” of power, as it does on stopping the centralization of power. Freytag v. Comm’r of Internal

Revenue, 501 U.S. 868, 878 (1991); cf. INS v. Chadha,

462 U.S. 919, 954–55 (1983); Larkin v. Grendel’s Den,

Inc., 459 U.S. 116, 122 (1982). In many ways, the Constitution limits efforts to hand off vested power to

18

other actors. “Congress has plenary control over the

salary, duties, and even existence of executive offices.”

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561

U.S. 477, 500 (2010). But Congress cannot assign the

power to appoint those officers to actors not authorized in the Constitution. Buckley v. Valeo, 424 U.S. 1,

127, 143 (1976) (per curiam); see Lucia v. SEC, 585

U.S. 237, 247–48, 251 (2018). Congress may, under

certain powers in the Constitution, limit the States’

sovereign immunity. Fitzpatrick v. Bitzer, 427 U.S.

445, 448 (1976). But Congress probably cannot “delegate[]” that power to others. Blatchford v. Native Vill.

of Noatak, 501 U.S. 775, 785 (1991). Congress may

“strip[]” Article III courts of the power to hear cases.

Patchak v. Zinke, 583 U.S. 244, 250–51 (2018). But

Congress may not assign the judicial power to another

branch. Instead, the “judicial power of the United

States may be vested only in courts.” Stern v. Marshall, 564 U.S. 462, 503 (2011) (emphasis added); see

also Miller v. Johnson, 515 U.S. 900, 922 (1995);

United States v. Nixon, 418 U.S. 683, 704 (1974). In

sum, if Congress cannot create a “sort of junior varsity

Congress” (or judiciary), Mistretta v. United States,

488 U.S. 361, 427 (1989) (Scalia, J., dissenting), it cannot create a junior-varsity executive branch in one

State.

All of these limits on handing off power promote

“political accountability” by letting the “benefits and

burdens” of the political action fall where they should.

Murphy, 584 U.S. at 473. Without limits, accountability gets blurry, and the “sovereign people” no longer

know “without ambiguity” whom to credit or blame.

Gundy v. United States, 588 U.S. 128, 155 (2019) (Gorsuch, J., dissenting). In other words, merely “because

Congress has been given explicit and plenary

19

authority to regulate a field of activity,” it does not

have carte blanche over the manner in which it regulates. Buckley, 424 U.S. at 132.

What is true about handing off power generally

must be true, by analogy, about handing off power to

only some States. Letting one State act like the federal executive clashes with the Constitution’s design

assigning that function to the Executive Branch. Imagine a law allowing some States, but not others, to

boycott Israel. Cf. Crosby v. Nat’l Foreign Trade

Council, 530 U.S. 363, 374–75 (2000). Or a law permitting just one State to enact and enforce immigration laws. Cf. Arizona v. United States, 567 U.S. 387,

394–95 (2012). It is one thing for Congress to enact

preemptive laws, which necessarily limit state sovereignty; the federal government has the power to do

that (subject to various limits). It is quite another

thing for Congress to empower one State, but no others, to exercise power like the federal executive. When

the federal government empowers a single State, it aggrandizes its own power and the power of the favored

State while weakening the power of the disfavored

States. Allowing Congress to reorder power that the

Constitution vests at the federal level contradicts the

Constitution’s basic concern against reassigning

vested powers.

In the end, the Constitution’s restraint on reassigning vested power reflects the Framers “explicit[]”

choice of “a Constitution that confers upon Congress

the power to regulate individuals, not States.” New

York v. United States, 505 U. S. 144, 166 (1992). Congress may no more delegate to one State alone the

power to act like the federal executive than it may

deputize the States to act as the national executive or

command a State to exercise its legislative power in

20

lockstep with Congress. Printz, 521 U.S. at 919–20;

Murphy, 584 U.S. at 473–74.

*

Both federalism and non-delegation justify this

Court’s statement that the States’ “status as coequal

sovereigns” is “implicit in … the original scheme of the

Constitution.” World–Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 292–93 (1980). That equality

is “implied by the [Constitution’s] basic design.”

Frank H. Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 Harv. J. Law & Pub. Pol’y 13, 16

(1998). Like other founding principles baked into the

Constitution, the States’ sovereign parity is something “the Constitution assumes,” Franchise (2019),

587 U.S. at 237. And that is why the Court has

treated the “‘constitutional equality’ among the

States,” Franchise (2016), 578 U.S. at 179 (citation

omitted), as a “truism” for more than 100 years. Virginia v. West Virginia, 246 U.S. 565, 593 (1918). That

truism has a consequence for courts evaluating equalsovereignty claims: Much like a claim that a power

falls outside the “executive power” must show that the

Constitution “expressly” took it away, Free Enter.

Fund, 561 U.S. at 492, a claim that States lack equal

sovereignty must show that the Constitution deleted

this “traditional,” id., State attribute.

4. To be sure, some language in the Constitution

enforces an even greater, though more selective,

equality mandate on Congress. Parts of Article I address State to State equality, such as the Bankruptcy

Clause and the Ports Preference Clause. See U.S.

Const. art. I, §8, cl. 4; §9 cl. 6. But those more-protective clauses do not signal that the Constitution abandons the deep structural premise of State equality.

21

Consider an analogy. The Speech and Debate Clause

confers legislator immunity, but it does not signal that

the Constitution’s comparative silence about presidential immunity eliminates that immunity. See, e.g.,

Nixon v. Fitzgerald, 457 U.S. 731, 750 n.31 (1982);

Akhil Reed Amar & Neal Kumar Katyal, Executive

Privileges and Immunities: The Nixon and Clinton

Cases, 108 Harv. L. Rev. 701, 706–07 (1995). In a similar way, the greater mandate for equality in these

clauses does not eliminate the Constitution’s deep

structural commitment to the States’ sovereign equality.

C. The D.C. Circuit’s judgment conflicts with

this Court’s most analogous precedent.

This Court’s precedents point in the opposite direction of the D.C. Circuit’s judgment.

This Court first addressed the States’ equal sovereignty in cases about admitting new States. The

Court long ago recognized that every State, as a matter of “the constitution” and “laws” of admission is

“admitted into the union on an equal footing with the

original states.” Pollard v. Hagan, 44 U.S. 212, 229

(1845). “[N]o compact” can “diminish or enlarge” the

rights a State has, as a State, when it enters the

Union. Id. Put differently, “a State admitted into the

Union enters therein in full equality with all the

others, and such equality may forbid any agreement

or compact limiting or qualifying political rights and

obligations.” Stearns v. Minnesota, 179 U.S. 223, 245

(1900); Coyle, 221 U.S. at 568. This precludes any arrangement in which one State is admitted on less-favorable terms than any other. See Or. ex rel. State

Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S.

363, 377–78 (1977). Conversely, it bars any State

22

from being admitted on terms more favorable than

those extended to its predecessors. United States v.

Texas, 339 U.S. at 717. Each State has the right, “under the constitution, to have and enjoy the same

measure of local or self government, and to be

admitted to an equal participation in the

maintenance, administration, and conduct of the

common or national government.” Case v. Toftus, 39

F. 730, 732 (C.C. D. Or. 1889).

Perhaps the most significant case regarding State

admission involved the Chicago River, a waterway

“over which congress, under its commercial power,

may exercise control.” Escanaba & Lake Mich.

Transp. Co. v. Chicago, 107 U.S. 678, 683 (1883). Absent any federal regulation, Illinois could “exercise the

same power over rivers within her limits” as the original States. Id. at 689. A shipping company argued

that Congress had limited Illinois through conditions

in the Act granting Illinois statehood, but the Court

concluded that those limitations “ceased to have any

operative force … after she became a state of the Union. On her admission she at once became entitled to

… all the rights of dominion and sovereignty which

belonged to the original States.” Id. at 688–89. Of

course, Congress could have regulated Illinois’s (and

other States’) rivers “under its commercial power,” but

it had not. Id. at 687. So the condition on Illinois’s

admission should have been valid on the theory that

admissions conditions within Congress’s enumerated

powers survive admission. The reason the condition

did not survive is that the equal-sovereignty principle

blocked Congress’s differential use of the commerce

power over navigable waters. See Coyle, 221 U.S. at

573.

23

More recent cases align with these admission

cases. The logic of these later cases flows from the reality that the States’ equality upon admission would

not matter much if Congress could vitiate it after admission. In the context of voting-rights laws, the

Court recently reaffirmed that the “fundamental

principle of equal sovereignty remains highly

pertinent in assessing subsequent disparate

treatment of States” after their admission. Shelby

Cnty., 570 U.S. at 544. Shelby County involved challenges to the Voting Rights Act, which required some

States, but not others, to receive federal permission

before amending their election laws. Id. at 544–45.

The Court determined that, in deciding whether such

legislation was “appropriate,” courts must consult the

background principle of equal sovereignty. See id.

When legislation departs from that principle—as the

Voting Rights Act did, by unequally limiting the

States’ power to adopt and enforce election laws—it

will be upheld as “appropriate legislation” only if the

disparate treatment is justified. Id. at 544–45, 552;

accord Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193, 203 (2009). Because the federal government failed to justify part of the Voting Rights Act,

Congress had no authority to enact that provision.

Shelby Cnty., 570 U.S. at 551–55.

Shelby County shows just how strong the equalsovereignty principle is. Shelby County reviewed a

law passed under the Fifteenth Amendment, which

allows Congress to single out some States for less-favorable treatment of their sovereign authority. See

South Carolina v. Katzenbach, 383 U.S. 301, 329

(1966); Shelby Cnty., 570 U.S. at 551–55. The Fifteenth Amendment, like the other amendments

passed after the Civil War, was “specifically designed

24

to alter the federal-state balance.” See Coll. Sav. Bank

v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527

U.S. 666, 670 (1999). When it comes to the States,

Congress may sometimes act under Section 5 in ways

it could not under the Commerce Clause. Seminole

Tribe v. Florida, 517 U.S. 44, 65–66 (1996). Therefore,

“principles of federalism that might otherwise be an

obstacle to congressional authority are necessarily

overridden by the power to enforce the Civil

War Amendments ‘by appropriate legislation.’” City

of Rome v. United States, 446 U.S. 156, 179 (1980); see

also Gregory, 501 U.S. at 468; EEOC v. Wyoming, 460

U.S. 226, 243 n.18 (1983); cf. Evan H. Caminker, State

Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95

Colum. L. Rev. 1001, 1006 n.13 (1995); Vicki C. Jackson, Federalism and the Uses and Limits of Law:

Printz and Principle?, 111 Harv. L. Rev. 2180, 2210–

11 (1998). When Congress Acts under other provisions, such as its Article I powers that lack the same

empowering language as the Reconstruction Amendments, it necessarily has less freedom to single out

States.

Despite Congress’s greater power to regulate the

States under the Civil War Amendments, the background rule that States retain equal sovereignty requires that Fifteenth Amendment legislation departing from that principle will be upheld as “appropriate”

only if the need for such differential treatment is solidly grounded in evidence. Shelby Cnty., 570 U.S. at

554. If the equal-sovereignty principle retains some

strength even in contexts where the States have surrendered their entitlement to complete sovereign

equality, it necessarily retains all its strength in

25

contexts where the States have not surrendered their

entitlement to sovereign equality.

*

*

*

If federal courts “must ‘respect ... the place of the

States in our federal system,’” Cameron v. EMW

Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 277

(2022) (citation omitted), federal courts should expect

no less from Congress. The Court should take up the

Question Presented to say so. Granting certiorari will

signal the “importance of showing respect for the sovereign States that comprise our Federal Union,”

United States v. Oakland Cannabis Buyers’ Coop., 532

U.S. 483, 502 (2001) (Stevens, J., concurring in judgment).

II.

This case raises an important question of

constitutional structure that many States

have raised, and here occurs in the

important context of environmental

regulation.

As detailed above, the question whether the States

retain equal sovereignty intersects with major structural features of the Constitution’s federalist design.

And while a decade ago, the Court addressed the

States’ equal sovereignty when Congress acts under a

Reconstruction Amendment power, it has not directly

addressed the States’ equal sovereignty when Congress Acts under more general powers like the Commerce Clause or the Spending Clause. Those clauses

are the basis for numerous federal laws. Congress

uses the Commerce Clause, “in a wide variety of ways”

to pass national laws. Nat’l Fed’n of Indep. Bus. v.

Sebelius, 567 U.S. 519, 549 (2012) (Roberts, C.J., Op.).

And the Spending Clause opens the door to even more

26

legislative terrain, given “the vast financial resources

of the Federal Government.” S. Dakota v. Dole, 483

U.S. 203, 217 (1987) (O’Connor, J., dissenting). It is

no surprise then, that the States have long sought an

answer as to their sovereign equality under these frequently deployed bases for congressional lawmaking.

This case is an ideal opportunity to answer that question.

Decades ago, Nevada cited the equal-sovereignty

doctrine to challenge Congress’s decision to site a nuclear-waste-disposal facility there. Nevada v. Watkins, 914 F.2d 1545, 1554 (9th Cir. 1990). More recently, New Jersey objected that Congress illegally

discriminated in favor of Nevada by allowing only Nevada to authorize sports betting. See Nat'l Collegiate

Athletic Ass’n v. Governor of N.J., 730 F.3d 208, 237–

38 (3d Cir. 2013), abrogated by 584 U.S. 453 (2018).

Around the same time, Maine cited its equal sovereignty with other States when it objected to the Department of Health and Human Services disapproving

its decision to change Medicaid eligibility for 19- and

20-year-olds. Mayhew v. Burwell, 772 F.3d 80, 94 (1st

Cir. 2014). Most recently, New York launched an

equal-sovereignty attack on Congress’s decision to cap

the deduction from federal taxes for state and local

taxes. New York v. Yellen, 15 F.4th 569, 583–84 (2d

Cir. 2021).

Ohio and its co-party States join the line formed by

Nevada, New Jersey, Maine, and New York, but with

a crucial difference. While New Jersey succeeded on

other grounds, Nevada, Maine, and New York ultimately challenged laws that did not differentially suppress state sovereignty. The recurring pleas from the

States to consider this question is one the court should

take up now, as this case most squarely presents it.

27

Not only would granting certiorari answer a question long on many States’ minds, but answering it in

this case would resolve an exceptionally important

question about how the States can regulate when

their regulations have vast national consequences. In

other words, this instance of Congress playing favorites intersects with one of the Constitution’s key goals:

to “create a national economic market.” Ross, 598 U.S.

at 404 (2023) (Kavanaugh, J., concurring in part and

dissenting in part). That national “federal free trade

unit” has brought Americans “material success” unrivaled “in the history of commerce.” H. P. Hood &

Sons, Inc. v. Du Mond, 336 U.S. 525, 538 (1949). Because the Constitution knits the States’ economic fortunes together, any congressional favoritism that empowers one State but not others to regulate the market ineluctably forces every other States to follow the

favored State’s lead. Quadruple that when the favored State is California. With an economy the size of

India’s or the United Kingdom’s, California has an

outsized influence on the American economy such that

no other State can avoid the economic consequences of

whatever policy California and its voters choose. The

net effect is that congressional favoritism that gives

one State more sovereign power than the rest elevates

the voters of one State over the voters of another. The

concrete effect in this case: no Ohioan (or non-Californian) voted for the policies that California voters effectively impose on Ohio and all the other States because Congress granted California a sovereign prerogative that no other State enjoys. At bottom, the Constitution’s “‘fundamental principle of equal sovereignty among the States’” means that voters in one

State are not “constitutionally entitled to greater authority to regulate” than voters in other States. Ross,

28

598 U.S. at 388 (2023) (Gorsuch, J., opinion) (quoting

Shelby Cnty, 570 U.S. at 544).

The unequal treatment here gives California alone

the power to act like the federal government. For example, after the federal government proposed new,

more relaxed emission standards under the previous

administration, several car manufacturers held “secret negotiations” with California regulators. Juliet

Eilperin and Brandy Davis, Major automakers strike

climate deal with California, rebuffing Trump on proposed mileage freeze, Washington Post (July 25, 2019),

https://perma.cc/5FXC-FJPR. These manufacturers

met with California because only California can adopt

standards that manufacturers must either implement

nationwide or find a way to implement in California

alone. A federal law giving one State special power to

regulate a major national industry contradicts the notion of a Union of sovereign States.

The States deserve to know if Congress can treat

them unequally when passing Article I laws. And answering that question in this case will resolve an important question of State power to regulate air quality.

III.

This is an ideal vehicle to address the

Question Presented.

Several features of this petition make it an ideal

vehicle to resolve the Question Presented.

A. This case is a good vehicle because the

States claim only equal sovereignty, not

equal results.

The States’ position here is a more moderate form

of the doctrine than advanced in some previous litigation. Ohio and the other States do not view equal

29

sovereignty as requiring equality of result, only political equality. Compare that with, for example, New

York’s position in Yellen, 15 F.4th at 583–84, which

challenged the unequal effects of changes to certain

federal tax deductions. Ohio and its co-petitioners argue here only that equal sovereignty prohibits Congress from giving states unequal power to regulate (or

prohibits it without a compelling justification). Of

course, equal treatment does not mean equal results.

See United States v. Texas, 339 U.S. at 716; cf. Washington v. Davis, 426 U.S. 229, 240–41 (1976). Congress is free to pass laws that produce unequal results

in the various States. Nor does equal treatment demand equal distribution of national spending or equal

use of the federal government’s property. The mandate is instead a requirement of equal “political rights

and obligations.” Stearns, 179 U.S. at 245. Ohio and

its co-party States seek “equal sovereignty, not …

equal treatment in all respects.” Thomas B. Colby, In

Defense of the Equal Sovereignty Principle, 65 Duke L.

J. 1087, 1149 (2016) (emphasis omitted); see also Valerie J.M. Brader, Congress’ Pet: Why the Clean Air

Act’s Favoritism of California is Unconstitutional Under the Equal Footing Doctrine, 13 Hastings Env’t L.

J. 119, 155 (2007). It is an equality of the States as

States.

The equal-sovereignty doctrine demands “parity”

only “as respects political standing and sovereignty.”

United States v. Texas, 339 U.S. at 716. Congress may

not unequally limit or expand the States’ “political

and sovereign power,” id. at 719, and must instead adhere to the principle that no State is “less or greater

… in dignity or power” than another, Coyle, 221 U.S.

at 566. Disparate limitations on the States’ sovereignty thus violate the equal-sovereignty doctrine.

30

Disparate treatment unrelated to sovereign authority,

however, does not. That means “Congress may devise

… national policy with due regard for the varying and

fluctuating interests of different regions.” Sec’y of

Agric. v. Cent. Roig Ref. Co., 338 U.S. 604, 616 (1950).

Congress may, in other words, pass legislation that

expressly or implicitly favors some States over others,

as long as it does not give some States favorable treatment with respect to the amount of sovereign authority they are permitted to exercise. Only disparate

treatment of sovereign authority implicates the equalsovereignty principle.

Congress routinely creates unequal results among

the States, and those are not challenged here. When

Congress locates naval bases in States with coastlines

or directs funding to projects in particular States,

those disparate results are not distinctions about sovereignty like the law challenged here. States located

in areas prone to natural disasters gain more from federal laws empowering and enriching FEMA. States

that sit atop oil fields bear the brunt and reap the benefit of federal energy policies. Spending Clause legislation will inevitably flow money to the States whose

populations or conditions disproportionately exhibit

the problems at which the funding is aimed. None of

that kind of inequality is challenged here.

Therefore, although some have criticized the

equal-sovereignty doctrine as too extreme or “capable

of much mischief,” Shelby Cnty., 570 U.S. at 588

(Ginsburg, J., dissenting), that is not the argument

the Court would confront in this case.

31

B. This case is a good vehicle because the

States press the alternative argument that

the California Waiver is unconstitutional

as applied here.

Another feature of the specific argument here

makes this case a good vehicle for the Question Presented. Ohio and its co-party States contend that the

California Waiver Provision is unconstitutional even

under the Shelby County test. Even if Congress can

empower a single State (or a single subset of States)

to regulate a matter of unique concern to that State

(or that subset of States), it may not do so as it has for

California here. The California Waiver Provision is

not “sufficiently related to the problem that it targets.” Shelby Cnty., 570 U.S. at 542 (quotation omitted).

For starters, the Provision accords special treatment to a category of States that enacted engine-emission regulations before March 30, 1966—a description

designed to forever include only California, and to forever exclude all other States, without regard to

whether other States face identical environmental

concerns. If “Congress must ensure that the legislation it passes to remedy [a] problem speaks to current

conditions,” id. at 557, a law tied to the state of the

world when the Beatles released Revolver is not it.

But even if the Waiver Provision could be justified

as addressing a California-specific concern with respect to clean air, that justification will not work here.

The challenged waiver allows California to regulate

greenhouse gases in order to curb “climate change.”

Pet. App. 211a. But as a member of this Court recognized (in arguing that “the very concept” of climate

change is “inconsistent” with particularized injury),

32

climate change would be a “phenomenon harmful to

humanity at large.” Massachusetts v. EPA, 549 U.S.

497, 541 (2007) (Roberts, C.J., dissenting) (quotation

omitted). The “task of dealing with” it would thus require action “at the national and international level.”

Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 415

(D.C. Cir. 2013) (Kavanaugh, J., concurring).

In sum, climate change does not present a risk

uniquely, or even especially, to California. Whatever

its effects, they would have to be assessed on a global,

not local, level. And in 2019, the EPA agreed. The

EPA explained that giving California a “waiver would

result in an indistinguishable change in global

temperatures,” and “likely no change in temperatures

or physical impacts resulting from anthropogenic

climate change in California.” 84 Fed. Reg. at 51,341.

The EPA now says, without evidence, that “California is particularly impacted by climate change.”

Pet. App. 211a. But home-insurance experts, to take

one example, consider California to be middle-of-theroad compared to other States with respect to climatechange risk. Pat Howard, Best & worst states for climate change, Policygenius (Oct. 5, 2022),

https://perma.cc/ZM7R-VG2R. While California may

experience effects of climate change, there is no evidence it will suffer effects that are different in degree

or kind than those experienced by all the other 49

States.

So, whatever one might make of the Waiver Provision in other applications, the equal sovereignty of the

States forbids the EPA from giving California alone

the power to regulate a global risk potentially faced by

every State in the country and by every nation on

Earth.

33

C. Several other features of the case advise a

grant.

First, the D.C. Circuit agreed that the States have

standing to advance an equal-sovereignty challenge.

Pet. App. 40a. So the case involves no threshold jurisdictional question.

Second, the D.C. Circuit’s belief that the States forfeited one version of an equal-sovereignty test is no

vehicle flaw as it is plainly inconsistent with this

Court’s holdings about preserving arguments. As this

Court has said, “separate arguments in support of a

single claim” are not waived by raising only one argument below. Yee v. City of Escondido, Cal., 503 U.S.

519, 534–35 (1992). In this Court, a petitioner can

bring “any argument they like[] in support of” a consistent claim. Id. at 535; see also Egbert v. Boule, 596

U.S. 482, 498 n.3 (2022); Franchise (2019), 587 U.S. at

235 n.1 (argument not waived even though party’s argument evolved to cite different constitutional basis in

support). The D.C. Circuit’s efforts to hamstring the

States’ arguments are more a reason to grant review

than to deny it.

Third, the D.C. Circuit’s opinion thoroughly

(though wrongly) considered the State’s arguments.

Over several pages of the Federal Reporter, the D.C.

Circuit addressed constitutional structure and history, as well as this Court’s cases and sister-circuit

cases. Pet. App. 41a–54a.

Fourth, this Petition is the plea of 17 sovereign

States to resolve the equal-sovereignty question. See

Pet App. 8a n.1. Unlike the single-State challenges

from other States described above, this challenge is

backed by a full third of the States of the Union.

34

Fifth, the D.C. Circuit may well be the only Court

of Appeals that can address the law challenged here

because Congress has designated the D.C. Circuit as

the forum for such challenges.

See 42 U.S.C.

§7607(b)(1). At a more general level, while there is no

circuit split over equal-sovereignty challenges to Article I legislation, uniform circuit error is no barrier to

reviewing an important question of constitutional

structure like the one raised here. This Court sometimes adopts positions that “[n]o Court of Appeals has

ever” embraced. Alexander v. Sandoval, 532 U.S. 275,

295 n.1 (2001) (Stevens, J., dissenting); see also, e.g.,

Rehaif v. United States, 588 U.S. 225, 239 (2019)

(Alito, J., dissenting); Massachusetts, 549 U.S. at 505–

06; Cent. Bank of Denver, N.A. v. First Interstate Bank

of Denver, N.A., 511 U.S. 164, 191 (1994) & id. at 192

(Stevens, J., dissenting).

Finally, the D.C. Circuit effectively invited review.

The Circuit pointed to a perceived limit in Shelby

County that waters down its force “outside the context

of ‘sensitive areas of state and local policymaking.’”

Pet App. 45a (ultimately quoting Shelby Cnty., 570

U.S. at 545). That approach, of course, inverts the relative power of Congress under the Reconstruction

Amendments and the Commerce Clause. See above at

23–25. And it signals the need for review. Perhaps

lower courts should not “read between the lines” in

this Court’s opinions. Sherman v. Cmty. Consol. Sch.

Dist. 21 of Wheeling Twp., 980 F.2d 437, 448 (7th

Cir.1992). But inverting the relative power of the

States and the federal government for Reconstruction

Amendment legislation and Commerce Clause legislation is not reading between the lines; it is smudging

them.

35

*

*

*

*

*

Not one voter outside California voted for the California policies that now effectively bind the nation

because Congress gave those voters a power it denied

the voters in the other 49 States. The Constitution’s

core principles prohibit Congress from giving that

power selectively to the voters of one of the States of

the Union at the expense of voters in all the other

States. This Court should say so and reverse.

36

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

MICHAEL J. HENDERSHOT*

*Counsel of Record

Chief Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

michael.hendershot@ohioago.gov

Counsel for Petitioner

State of Ohio

JULY 2024

37

Additional Counsel

STEVE MARSHALL

Attorney General of Alabama

EDMUND G. LACOUR JR.

Solicitor General

Office of the Attorney General

State of Alabama

501 Washington Avenue

P.O. Box 300152

Montgomery, Alabama 36130-0152

334-242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for State of Alabama

TIM GRIFFIN

Attorney General of Arkansas

NICHOLAS J. BRONNI

Solicitor General

Arkansas Attorney General’s Office

323 Center Street, Suite 200

Little Rock, Arkansas 72201

501-682-2007

Nicholas.Bronni@arkansasag.gov

Counsel for the State of Arkansas

38

CHRISTOPHER M. CARR

Attorney General of Georgia

STEPHEN J. PETRANY

Solicitor General

Georgia Department of Law

40 Capitol Square, SW

Atlanta, Georgia 30334

404-458-3408

spetrany@law.ga.gov

Counsel for State of Georgia

THEODORE E. ROKITA

Attorney General of Indiana

JAMES A. BARTA

Solicitor General

Office of the Indiana Attorney General

IGC-South, Fifth Floor

302 West Washington Street

Indianapolis, IN 46204-2770

317-232-0607

James.Barta@atg.in.gov

Counsel for State of Indiana

39

KRIS KOBACH

Attorney General of Kansas

ANTHONY J. POWELL

Solicitor General

120 S.W. 10th Avenue, 3rd Floor

Topeka, KS 66612

785-368-8435

Anthony.Powell@ag.ks.gov

Counsel for State of Kansas

RUSSELL COLEMAN

Attorney General of Kentucky

MATTHEW F. KUHN

Solicitor General

Office of Kentucky Attorney General

700 Capital Avenue, Suite 118

Frankfort, Kentucky 40601

502-696-5400

Matt.Kuhn@ky.gov

Counsel for State of Kentucky

40

ELIZABETH B. MURRILL

Attorney General of Louisiana

BENJAMIN AGUIÑAGA

Solicitor General

Louisiana Department of Justice

1885 N. Third Street

Baton Rouge, Louisiana 70804

225-326-6766

AguinagaJ@ag.louisiana.gov

Counsel for State of Louisiana

LYNN FITCH

Attorney General of Mississippi

JUSTIN L. MATHENY

Deputy Solicitor General

Office of the Attorney General

P.O. Box 220

Jackson, MS 39205-0220

601-359-3680

justin.matheny@ago.ms.gov

Counsel for State of Mississippi

41

ANDREW BAILEY

Attorney General of Missouri

JOSHUA DIVINE

Solicitor General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

573-751-8870

Josh.Divine@ago.mo.gov

Counsel for State of Missouri

AUSTIN KNUDSEN

Attorney General of Montana

CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.

Deputy Solicitor General

Montana Department of Justice

215 N. Sanders St

Helena, MT 59601

406-444-2707

christian.corrigan@mt.gov

peter.torstensen@mt.gov

Counsel for State of Montana

42

MICHAEL T. HILGERS

Attorney General of Nebraska

ERIC HAMILTON

Solicitor General

Office of the Nebraska Attorney General

2115 State Capitol

Lincoln, NE 68509

402-471-2682

eric.hamilton@nebraska.gov

Counsel for State of Nebraska

GENTNER DRUMMOND

Attorney General of Oklahoma

GARRY M. GASKINS, II

Solicitor General

Office of the Oklahoma Attorney General

313 NE 21st Street

Oklahoma City, OK 73105

405-521-3921

garry.gaskins@oag.ok.gov

Counsel for State of Oklahoma

43

ALAN WILSON

Attorney General of South Carolina

JAMES EMORY SMITH

Deputy Solicitor General

South Carolina Attorney General’s Office

P.O. Box 11549

Columbia, SC 29211

803-734-3680

esmith@scag.gov

Counsel for State of South Carolina

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General

AARON NIELSON

Solicitor General

Office of the Attorney General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

512-936-1700

Aaron.Nielson@oag.texas.gov

Counsel for State of Texas

44

SEAN D. REYES

Attorney General of Utah

STANFORD PURSER

Utah Solicitor General

160 East 300 South, 5th Floor

Salt Lake City, Utah 84114

801-366-0260

Spurser@agutah.gov

Counsel for State of Utah

PATRICK MORRISEY

Attorney General of West Virginia

MICHAEL R. WILLIAMS

Solicitor General

Office of the West Virginia Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

304-558-2021

mwilliams@wvago.gov

Counsel for State of West Virginia