Petition for Writ of Certiorari — Ohio, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJul 5, 2024
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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
______________________________
APPENDIX
______________________________
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)
TABLE OF CONTENTS
Page
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
1a
APPENDIX A
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. Pemberton. Shelby L. Dyl
and Samara L. Kline entered appearances.
2a
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
3a
General, Office of the Attorney General for the State
of Nebraska, James A. Campbell, Solicitor General,
Justin D. 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.
4a
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 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.
5a
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 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
6a
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. 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
7a
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 respondentintervenors 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, 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.
8a
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, 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
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.
9a
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
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
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.
10a
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,
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
11a
(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 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,
201 U.S. App. D.C. 109 (D.C. Cir. 1979).
12a
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.
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. 90728, 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
13a
patchwork of regulatory obligations and significantly
increasing manufacturing costs. See H.R. Rep. No. 90728, at 21; see also Engine Mfrs. Ass’n v. EPA, 88 F.3d
1075, 1079, 319 U.S. App. D.C. 12 (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 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
14a
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 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).
15a
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, 43 Fed. Reg. 25729, 25735 (June
14, 1978); California State Motor Vehicle Pollution
16a
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
17a
limiting greenhouse gas emissions. See Cal. Air Res.
Bd., Low-Emission Vehicle 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
18a
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
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
19a
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 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.
20a
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 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 (221081). California and several other states and cities
(collectively,
“California”),4
environmental
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
21a
organizations,5 and automobile manufacturers6 have
intervened in support of respondents in the
consolidated case.
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
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.
22a
standards set out in the EPCA. See State Pet. Br. 3341.
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.
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, 320 U.S. App. D.C. 324 (D.C. Cir. 1996) (en
banc) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (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, 386 U.S. App. D.C. 406 (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
23a
(b) actual or imminent, not conjectural or
hypothetical.” Bennett v. Spear, 520 U.S. 154, 167, 117
S. Ct. 1154, 137 L. Ed. 2d 281 (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, 96 S. Ct. 1917,
48 L. Ed. 2d 450 (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, 395 U.S. App. D.C. 193
(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, 352 U.S. App. D.C. 191 (D.C.
Cir. 2002) (quoting API v. United States EPA, 216 F.3d
50, 63, 342 U.S. App. D.C. 159 (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 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).
24a
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, 104 S. Ct.
3315, 82 L. Ed. 2d 556 (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. United States DOI, 563 F.3d 466, 477, 385
U.S. App. D.C. 257 (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
25a
depress the demand 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
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).
26a
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 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 dieselpowered) 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
27a
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 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
28a
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 nonconventional 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 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
29a
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 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
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.
30a
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, 361 U.S. App.
D.C. 54 (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, 993 F.2d 906, 912, 301
U.S. App. D.C. 244 (D.C. Cir. 1993) (“A court is rightly
reluctant to enter a judgment which may have no real
consequence, depending upon the putative costbenefit 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
31a
(“[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 “quasisovereign interests.” Massachusetts v. EPA, 549 U.S.
497, 518-20, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (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 respect to an
element of a state’s standing. Alaska v. U.S. Dep’t of
Agric., 17 F.4th 1224, 1230, 454 U.S. App. D.C. 493
(D.C. Cir. 2021).
State and Fuel Petitioners’ sparse treatment of
redressability is particularly surprising because, in a
32a
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 before the Court
33a
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. 8485; 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
34a
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 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
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).
35a
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 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, 453
U.S. App. D.C. 184 (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
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 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, 104 S. Ct. 1936, 80 L. Ed. 2d
480 (1984) (citing 28 U.S.C. § 2347(b)(3)); Fed. R. App. R. 48(a).
36a
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 cause” shown. Am. Libr. Ass’n v. FCC, 401 F.3d
489, 495-96, 365 U.S. App. D.C. 207 (D.C. Cir. 2005)
(quoting Sierra Club, 292 F.3d at 900); Nat’l Council
for Adoption v. Blinken, 4 F.4th 106, 112, 453 U.S.
App. D.C. 199 (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, 443
U.S. App. D.C. 74 (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
37a
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.
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
38a
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, 133
S. Ct. 2612, 186 L. Ed. 2d 651 (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, 129 S. Ct. 2504, 174 L. Ed.
2d 140 (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 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, 584 U.S. 453, 138
S. Ct. 1461, 200 L. Ed. 2d 854 (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
39a
merits” petitioners “would be successful.” City of
Waukesha v. EPA, 320 F.3d 228, 235, 355 U.S. App.
D.C. 100 (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. Mathews, 465 U.S. 728,
739-40, 104 S. Ct. 1387, 79 L. Ed. 2d 646 (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 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, 52 S. Ct. 133,
76 L. Ed. 265 (1931)); see also Sessions v. MoralesSantana, 582 U.S. 47, 72-73, 137 S. Ct. 1678, 198 L.
Ed. 2d 150 (2017). That principle developed in cases
applying the Fourteenth Amendment’s Equal
40a
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, 458 U.S. 718, 725, 102 S. Ct. 3331, 73
L. Ed. 2d 1090 (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, 141 S. Ct. 2190, 210 L. Ed. 2d 568 (2021); see also,
e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S. Ct.
1854, 164 L. Ed. 2d 589 (2006); Davis v. Fed. Election Comm’n,
554 U.S. 724, 734, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008). We
are aware of no precedent or rationale that would allow parties
to bring claims over which we otherwise would lack jurisdiction—
such as State Petitioners’ statutory preemption claim—by
appending another claim subject to a different standing analysis.
41a
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, 86 S. Ct. 803,
15 L. Ed. 2d 769 (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
42a
Supreme Court relied in part on the “fundamental
principle of equal sovereignty,” id. at 544, to hold that
the 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
43a
to exercise sovereign authority that § 209(a) takes
from every other State.”); State Pet. Reply Br. 10, 12.13
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
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. 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.
44a
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, 101 S. Ct. 2352,
69 L. Ed. 2d 1 (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, 6 L. Ed. 23 (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
elections, a “sensitive area of state and local
policymaking,” id. at 545 (quoting Lopez v. Monterey
County, 525 U.S. 266, 282, 119 S. Ct. 693, 142 L. Ed.
2d 728 (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, 111 S.
Ct. 2395, 115 L. Ed. 2d 410 (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
45a
v. EPA, 790 F.3d 138, 180-83, 416 U.S. App. D.C. 69
(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, 69 S. Ct. 657, 93 L. Ed. 865 (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, 70 S. Ct. 403, 94 L. Ed.
381 (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, 101 S.
Ct. 2376, 69 L. Ed. 2d 40 (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 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
46a
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, 80 S. Ct. 961, 4 L. Ed. 2d
1025 (1960), supplemented sub nom. United States v.
Louisiana, 382 U.S. 288, 86 S. Ct. 419, 15 L. Ed. 2d
331 (1965). For example, Coyle v. Smith, 221 U.S. 559,
31 S. Ct. 688, 55 L. Ed. 853 (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 concededly beyond any of Congress’s other
enumerated powers. Id. The Court explained that
Congress could not use its admission power to require
47a
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
48a
“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. at 574; see
also id. at 572-74; Pollard v. Hagan, 44 U.S. 212, 22930, 11 L. Ed. 565 (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
49a
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 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 equalitybased 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, 203 L. Ed. 2d 768 (2019). That
category also includes limits on the Commerce Clause,
such as the Tenth Amendment anticommandeering
doctrine, which are supported by the historical context
50a
in which our federal structure was created. See New
York v. United States, 505 U.S. 144, 163-66, 112 S. Ct.
2408, 120 L. Ed. 2d 120 (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 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, 84 S. Ct. 526, 11 L. Ed. 2d 481 (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
51a
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.
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
52a
U.S. 273, 283, 25 L. Ed. 412 (1878) (“Taxation, beyond
all doubt, is the exercise of a sovereign power . . . .”);
Cuyler v. Adams, 449 U.S. 433, 440, 101 S. Ct. 703, 66
L. Ed. 2d 641 (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, 98 S. Ct. 799, 54 L. Ed. 2d 682 (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 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
53a
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).
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
54a
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.
55a
APPENDIX B
ENVIRONMENTAL PROTECTION AGENCY
[EPA–HQ–OAR–2021–0257; FRL–9325–01–OAR]
California State Motor Vehicle Pollution
Control Standards; Advanced Clean Car
Program; Reconsideration of a Previous
Withdrawal of a Waiver of Preemption; Notice of
Decision
AGENCY: Environmental Protection Agency.
ACTION: Notice of decision.
SUMMARY: The Environmental Protection Agency
(EPA) has completed the reconsideration of its 2019
action withdrawing a 2013 Clean Air Act (CAA)
waiver of preemption for California’s greenhouse gas
(GHG) emission standards and zero emission vehicle
(ZEV) sale mandate, which are part of California’s
Advanced Clean Car (ACC) program. This decision
rescinds EPA’s 2019 waiver withdrawal, thus
bringing back into force the 2013 ACC program
waiver, including a waiver of preemption for
California’s ZEV sales mandate and GHG emissions
standards. In addition, EPA is withdrawing the
interpretive view of CAA section 177 included in its
2019 action, that States may not adopt California’s
GHG standards pursuant to section 177 even if EPA
has granted California a waiver for such standards.
Accordingly, other States may continue to adopt and
enforce California’s GHG standards under section 177
so long as they meet the requirements of that section.
DATES: Petitions for review must be filed by May 13,
2022.
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ADDRESSES: EPA has established a docket for this
action under Docket ID EPA–HQ–OAR–2021–0257.
All documents relied upon in making this decision,
including those submitted to EPA by CARB, are
contained in the public docket. Publicly available
docket materials are available electronically through
www.regulations.gov.
After
opening
the
www.regulations.gov website, enter EPA–HQ–OAR–
2021– 0257 in the ‘‘Enter Keyword or ID’’ fill-in box to
view documents in the record. Although a part of the
official docket, the public docket does not include
Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.
EPA’s Office of Transportation and Air Quality
(OTAQ) maintains a web page that contains general
information on its review of California waiver and
authorization requests. Included on that page are
links to prior waiver Federal Register notices, some of
which are cited in this notice; the page can be accessed
at
https://
www.epa.gov/state-andlocaltransportation/vehicle-emissionscaliforniawaivers-and-authorizations.
FOR FURTHER INFORMATION CONTACT:
David Dickinson, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 1200
Pennsylvania Ave. NW. Telephone: (202) 343–9256.
Email: Dickinson.David@epa.gov or Kayla Steinberg,
Office of Transportation and Air Quality, U.S.
Environmental Protection Agency, 1200 Pennsylvania
Ave. NW. Telephone: (202) 564–7658. Email:
Steinberg.Kayla@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
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II. Background
A. California’s Advanced Clean
Program and EPA’s 2013 Waiver
Car
(ACC)
B. Prior Waivers for GHG Standards
C. SAFE 1 Decision
D. Petitions for Reconsideration
III. Principles Governing This Review
A. Scope of Preemption and Waiver Criteria Under
the Clean Air Act
B. Deference to California
C. Standard and Burden of Proof
IV. EPA did not Appropriately Exercise Its Limited
Authority To Reconsider the ACC Program Waiver in
SAFE 1
A. Comments Received
B. Analysis: EPA Inappropriately Exercised Its
Limited Authority To Reconsider
C. Conclusion
V. The SAFE 1 Interpretation of Section 209(b)(1)(B)
was Inappropriate and, in any Event, California met
Its Requirements
A. Historical Practice
B. Notice of Reconsideration of SAFE 1 and
Request for Comment
C. Comments Received
D. Analysis: California Needs the ACC Program
GHG Standards and ZEV Sales Mandate to Address
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Compelling and Extraordinary Conditions Under
Section 209(b)(1)(B)
1. EPA is Withdrawing the SAFE 1 Section
209(b)(1)(B) Interpretation
2. California Needs the GHG Standards and ZEV
Sales Mandate Even Under the SAFE 1
Interpretation
a. GHG Standards and ZEV Sales Mandates Have
Criteria Emission Benefits
b. California Needs Its Standards To Address the
Impacts of Climate Change in California
3. California’s ZEV Sales Mandate as Motor
Vehicle Control Technology Development
E. Conclusion
VI. EPA Inappropriately Considered Preemption
Under the Energy and Policy Conservation Act
(EPCA) in Its Waiver Decision
A. Historical Practice and Legislative History
B. Notice of Reconsideration of SAFE 1 and
Request for Comment
C. Comments Received
D. Analysis: EPA is Rescinding its SAFE 1 Actions
Related to Preemption Under EPCA
1. NHTSA Has Since Repealed Its Findings of
Preemption Made in SAFE 1
2. EPA Improperly Deviated From its Historical
Practice of Limiting its Review to Section 209(b)
Criteria
E. Conclusion
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VII. EPA Inappropriately set Forth an Interpretive
View of Section 177 in SAFE 1
A. SAFE 1 Interpretation
B. Notice of Reconsideration of SAFE 1 and
Request for Comment
C. Comments Received
D. Analysis: EPA Is Rescinding SAFE 1’s
Interpretive Views of Section 177
E. Conclusion
VIII. Other Issues
A. Equal Sovereignty
B. CARB’s Deemed-to-Comply Provision
IX. Decision
X. Statutory and Executive Order Reviews
I. Executive Summary
CAA section 209(a) generally preempts states from
adopting emission control standards for new motor
vehicles. But Congress created an important
exception from preemption. Under CAA section
209(b), the State of California 1 may seek a waiver of
preemption, and EPA must grant it unless the Agency
The CAA section 209(b) waiver is limited “to any State which
has adopted standards . . . for the control of emissions from new
motor vehicles or new motor vehicle engines prior to March 30,
1966,” and California is the only State that had standards in
place before that date. “California” and “California Air Resources
Board” (CARB) are used interchangeably in certain instances in
this notice when referring to the waiver process under section
209(b).
1
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makes one of three statutory findings. California’s
waiver of preemption for its motor vehicle emissions
standards allows other States to adopt and enforce
identical standards pursuant to CAA section 177.
Since the CAA was enacted, EPA has granted
California dozens of waivers of preemption,
permitting California to enforce its own motor vehicle
emission standards.
Of particular relevance to this action, in 2013, EPA
granted California’s waiver request for the state’s
Advanced Clean Car (ACC) program (ACC program
waiver).2 California’s ACC program includes both a
Low Emission Vehicle (LEV) program, which
regulates criteria pollutants and greenhouse gas
(GHG) emissions, as well as a Zero Emission Vehicle
(ZEV) sales mandate. These two requirements are
designed to control smog- and soot-causing pollutants
and GHG emissions in a single coordinated package of
requirements for passenger cars, light-duty trucks,
and medium-duty passenger vehicles (as well as
limited requirements related to heavy-duty vehicles).
Between 2013 and 2019, twelve other States adopted
one or both of California’s standards as their own. But
in 2019, EPA partially withdrew this waiver as part of
a final action entitled “The Safer Affordable FuelEfficient (SAFE) Vehicles Rule Part One: One
National Program” (SAFE 1), marking the first time
the agency withdrew a previously granted waiver. 3 In
addition, in the context of SAFE 1, EPA provided an
interpretive view of CAA section 177 asserting that
2
78 FR 2111 (January 9, 2013).
3
84 FR 51310 (September 27, 2019).
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other states were precluded from adopting California’s
GHG standards.
As Administrator of the Environmental Protection
Agency (EPA), I am now rescinding EPA’s 2019
actions in SAFE 1 that partially withdrew the ACC
program waiver for California’s ACC program. I am
rescinding these actions because (1) EPA’s
reconsideration of the waiver under the particular
facts and circumstances of this case was improper; (2)
EPA’s reconsideration was based on a flawed
interpretation of CAA section 209(b); (3) even under
that flawed interpretation, EPA misapplied the facts
and inappropriately withdrew the waiver; (4) EPA
erred in looking beyond the statutory factors in CAA
209(b) to action taken by another agency under
another statute to justify withdrawing the waiver; (5)
that agency has also since withdrawn the action EPA
relied on in any event; and (6) EPA inappropriately
provided an interpretive view of section 177.
As a result of this action, EPA’s 2013 waiver for the
ACC program, specifically the waiver for California’s
GHG emission standards and ZEV sales mandate
requirements for model years (MYs) 2017 through
2025, comes back into force.4 I am also rescinding the
In SAFE 1, EPA did not withdraw the entire 2013 waiver, but
instead only withdrew the waiver as it related to California’s
GHG emission standards and the ZEV sales mandate. The
waiver for the low-emission vehicle (LEV III) criteria pollutant
standards in the ACC program remained in place. EPA’s
reconsideration of SAFE 1 and the impact on the ACC waiver
therefore relates only to the GHG emission standards and the
ZEV sales mandate, although “ACC program waiver” is used in
this document. This action rescinds the waiver withdrawal in
4
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interpretive view set forth in SAFE 1 that States may
not adopt California’s GHG standards pursuant to
CAA section 177 even if EPA has granted California a
section 209 waiver for such standards. Accordingly,
States may now adopt and enforce California’s GHG
standards so long as they meet the requirements of
Section 177, and EPA will evaluate any State’s
request to include those provisions in a SIP through a
separate notice and comment process.
Section II of this action contains a detailed history
of EPA’s waiver adjudications leading up to this
action. In summary, in 2012, CARB submitted the
ACC waiver request to EPA, which included ample
evidence of the criteria pollution benefits of the GHG
standards and the ZEV sales mandate. As it had in all
prior waiver decisions with two exceptions (including
SAFE 1), in considering the request EPA relied on its
“traditional” interpretation of section 209(b)(1)(B),
which examines whether California needs a separate
motor vehicle program as a whole—not specific
standards—to address the state’s compelling and
extraordinary conditions. In 2013, EPA granted
California’s waiver request for its ACC program in
full. In 2018, however, EPA proposed to withdraw
portions of its waiver granted in 2013 based on a new
interpretation of section 209(b)(1)(B) that looked at
whether the specific standards (the GHG standards
and ZEV sales mandate), as opposed to the program
as a whole, continued to meet the second and third
waiver prongs (found in sections 209(b)(1)(B) and
SAFE 1. In this decision, the Agency takes no position on any
impacts this decision may have on state law matters regarding
implementation.
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(C)).5 In addition, EPA proposed to look beyond the
section 209(b) criteria to consider the promulgation of
a NHTSA regulation and pronouncements in SAFE 1
that declared state GHG emission standards and ZEV
sales mandates preempted under EPCA. In 2019,
after granting CARB a waiver for its ACC program in
2013 and after 12 states had adopted all or part of the
California standards under section 177, EPA
withdrew portions of the waiver for CARB’s GHG
emission standards and ZEV sales mandates. In
SAFE 1, EPA cited changed circumstances and was
based on a new interpretation of the CAA and the
agency’s reliance on an action by NHTSA that has now
been repealed.6
On January 20, 2021, President Biden issued
Executive Order 13990, directing the Federal
Agencies to “immediately review” SAFE 1 and to
EPA’s 2018 proposal was jointly issued with the National
Highway Traffic Safety Administration (NHTSA). 83 FR 42986
(August 24, 2018) (the “SAFE proposal”). In addition to partially
withdrawing the waiver, that proposal proposed to set less
stringent greenhouse gas and CAFE standards for model years
2021-2026. NHTSA also proposed to make findings related to
preemption under the Energy Policy and Conservation Act
(EPCA) and its relationship to state and local GHG emission
standards and ZEV sales mandates.
5
84 FR 51310. In SAFE 1, NHTSA also finalized its action
related to preemption under EPCA. NHTSA’s action included
both regulatory text and well as pronouncements within the
preamble of SAFE 1. In 2020, EPA finalized its amended and less
stringent carbon dioxide standards for the 2021-2026 model
years in an action titled “The Safer Affordable Fuel-Efficient
(SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars
and Light Trucks” (SAFE 2). 85 FR 24174 (April 30, 2020).
6
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consider action “suspending, revising, or rescinding”
that action by April 2021. On April 28, 2021, EPA
announced its Notice of Reconsideration, including a
public hearing and an opportunity for public
comment.7 The Agency stated its belief that there
were significant issues regarding whether SAFE 1
was a valid and appropriate exercise of Agency
authority, including the amount of time that had
passed since EPA’s ACC program waiver decision, the
approach and legal interpretations used in SAFE 1,
whether EPA took proper account of the
environmental conditions (e.g., local climate and
topography, number of motor vehicles, and local and
regional air quality) in California, and the
environmental consequences from the waiver
withdrawal in SAFE 1. Further, EPA stated it would
be addressing issues raised in the related petitions for
reconsideration of EPA’s SAFE 1 action. In the
meantime, having reconsidered its own action, and
also in response to Executive Order 13990, NHTSA
repealed its conclusion that state and local laws
related to fuel economy standards, including GHG
standards and ZEV sales mandates, were preempted
under EPCA,8 and EPA revised and made more
stringent the Federal GHG emission standards for
”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 FR 22421 (April 28, 2021).
7
8
86 FR 74236 (December 29, 2021).
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light-duty vehicles for 2023 and later model years,
under section 202(a).9
Section III of this action outlines the principles
that govern waiver reconsiderations. It sets forth the
statutory background and context for the CAA
preemption of new motor vehicle emission standards,
the criteria for granting a waiver of preemption, and
the ability of other States to adopt and enforce
California’s new motor vehicle emission standards
where a waiver has been issued if certain CAA criteria
are met. In brief, CAA section 209(a) generally
preempts all States or political subdivisions from
adopting and enforcing any standard relating to the
control of emissions from new motor vehicles or new
motor vehicle engines. But section 209(b) contains an
important exception that allows only California to
submit a request to waive preemption for its
standards. Importantly, EPA must grant the waiver
unless the Administrator makes at least one of three
findings: (1) That California’s determination that its
standards will be, in the aggregate, at least as
protective of public health and welfare as applicable
Federal standards, is arbitrary and capricious (the
“first waiver prong,” under section 209(b)(1)(A)); (2)
that California does not need such State standards to
meet compelling and extraordinary conditions (the
“second waiver prong,” under section 209(b)(1)(B)); or
(3) that California standards are not consistent with
section 202(a), which contains EPA’s authority to
regulate motor vehicles (the “third waiver prong,”
under section 209(b)(1)(C)). In the 1977 amendments
to the CAA, section 177 was added to allow other
9
86 FR 74434 (December 30, 2021).
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States that may be facing their own air quality
concerns to adopt and enforce the California new
motor vehicle emission standards for which California
has been granted a waiver under section 209(b) if
certain criteria are met.
Section III also provides more context to indicate
that Congress intended that, when reviewing a
request for a waiver, EPA treat with deference the
policy judgments on which California’s vehicle
emission standards are based. It discusses the history
of Congress allowing states to adopt more stringent
standards. Ultimately, Congress built a structure in
section 209(b) that grants California authority to
address its air quality problems, and also
acknowledges the needs of other states to address
their air quality problems through section 177. Lastly,
Section III describes the burden and standard of proof
for waiver decisions.
Section IV of this action then discusses EPA’s first
basis for rescinding the SAFE 1 waiver withdrawal:
That EPA did not appropriately exercise its limited
authority to withdraw a waiver once granted. Section
209 does not provide EPA with express authority to
reconsider and withdraw a waiver previously granted
to California. EPA’s authority thus stems from its
inherent reconsideration authority. In the context of
reconsidering a waiver grant, that authority may only
be exercised sparingly. EPA believes its inherent
authority to reconsider a waiver decision is
constrained by the three waiver criteria that must be
considered before granting or denying a waiver
request under section 209(b). EPA’s reconsideration
may not be broader than the limits Congress placed
on its ability to deny a waiver in the first place. EPA
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notes further support for limiting its exercise of
reconsideration authority, relevant in the context of a
waiver withdrawal, is evidenced by Congress’s
creation of a state and federal regulatory framework
to drive motor vehicle emissions reduction and
technology innovation that depends for its success on
the stable market signal of the waiver grant—
automobile manufacturers must be able to depend
reliably on the continuing validity of the waiver grant
in order to justify the necessary investments in
cleaner vehicle technology. Accordingly, EPA now
believes it may only reconsider a previously granted
waiver to address a clerical or factual error or mistake,
or
where
information
shows
that
factual
circumstances or conditions related to the waiver
criteria evaluated when the waiver was granted have
changed so significantly that the propriety of the
waiver grant is called into doubt. Even then, as with
other adjudicatory actions, when choosing to
undertake such a reconsideration EPA believes it
should exercise its limited authority within a
reasonable timeframe and be mindful of reliance
interests. EPA expects such occurrences will be rare.
The Agency’s waiver withdrawal in SAFE 1 was not
an appropriate exercise of EPA’s limited authority;
there was no clerical error or factual error in the ACC
program waiver, and SAFE 1 did not point to any
factual circumstances or conditions related to the
three waiver prongs that have changed so
significantly that the propriety of the waiver grant is
called into doubt. Rather, the 2019 waiver withdrawal
was based on a change in EPA’s statutory
interpretation, an incomplete assessment of the
record, and another agency’s action beyond the
confines of section 209(b). EPA erred in reconsidering
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a previously granted waiver on these bases.
Accordingly, EPA is rescinding its 2019 withdrawal of
its 2013 ACC program waiver.
Sections V and VI further explain why, even if
SAFE 1 were an appropriate exercise of EPA’s limited
authority to reconsider its previously-granted waiver,
the Agency would still now rescind its waiver
withdrawal.
As discussed in Section V, the Agency’s
reinterpretation of the second waiver prong in SAFE
1 was flawed. While EPA has traditionally interpreted
the second waiver prong, section 209(b)(1)(B), to
require a waiver unless the Agency demonstrates that
California does not need its own motor vehicle
emissions program, to meet compelling and
extraordinary conditions, the SAFE 1 waiver
withdrawal decision was based on a statutory
interpretation that calls for an examination of the
need for the specific standard at issue. Section V
explains why EPA believes that its traditional
interpretation is, at least, the better interpretation of
the second waiver prong because it is most consistent
with the statutory language and supported by the
legislative history. Accordingly, we reaffirm the
traditional interpretation—in which EPA reviews the
need for California’s motor vehicle program—in this
action.
Additionally, Section V explains why even if the
focus is on the specific standards, when looking at the
record before it, EPA erred in SAFE 1 in concluding
that California does not have a compelling need for the
specific standards at issue—the GHG emission
standards and ZEV sales mandate. In particular, in
SAFE 1, the Agency failed to take proper account of
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the nature and magnitude of California’s serious air
quality problems, including the interrelationship
between criteria and GHG pollution.10 Section V
further discusses EPA’s improper substitution in
SAFE 1 of its own policy preferences for California’s,
and discusses the importance of deferring to
California’s
judgment
on
“ambiguous
and
controversial matters of public policy” that relate to
the health and welfare of its citizens. 11 Based on a
complete review of the record in this action, EPA now
believes that, even under the SAFE 1 interpretation,
California needs the ZEV sales mandate and GHG
standards at issue to address compelling and
extraordinary air quality conditions in the state.
EPA’s findings in SAFE 1, which were based on the
Agency’s inaccurate belief that these standards were
either not intended to or did not result in criteria
emission reductions to address California’s National
Ambient Air Quality Standard (NAAQS) obligations,
are withdrawn.
As explained herein, the requirements in the ACC program
were designed to work together in terms of the technologies that
would be used to both lower criteria emissions and GHG
emissions. The standards, including the ZEV sales mandate and
the GHG emission standards, were designed to address the shortand long-term air quality goals in California in terms of the
criteria emission reductions (including upstream reductions)
along GHG emission reductions. The air quality issues and
pollutants addressed in the ACC program are interconnected in
terms of the impacts of climate change on such local air quality
concerns such as ozone exacerbation and climate effects on
wildfires that affect local air quality.
10
40 FR 23102, 23104 (May 28, 1975); 58 FR 4166 (January 13,
1993).
11
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Section VI discusses SAFE 1’s other basis for
withdrawing the ACC program waiver, EPCA. In
SAFE 1, EPA reached beyond the waiver criteria in
section 209(b)(1) and considered NHTSA’s regulations
in SAFE 1 that state or local regulation of carbon
dioxide emission from new motor vehicles (including
California’s ZEV sales mandate and GHG standards)
are related to fuel economy and as such are preempted
under EPCA. NHTSA has since issued a final rule
that repeals all regulatory text and additional
pronouncements regarding preemption under EPCA
set forth in SAFE 1.12 This action by NHTSA
effectively removes the underpinning and any possible
reasoned basis for EPA’s withdrawal decision based
on preemption under EPCA in SAFE 1. Additionally,
the Agency has historically refrained from
consideration of factors beyond the scope of the waiver
criteria in section 209(b)(1) and the 2013 ACC
program waiver decision was undertaken consistent
with this practice. EPA believes that the consideration
of EPCA preemption in SAFE 1 led the Agency to
improperly withdraw the ACC program waiver on this
non-CAA basis. EPA’s explanation that withdrawal on
this basis was justified because SAFE 1 was a joint
action, and its announcement that this would be a
single occurrence, does not justify the ACC waiver
withdrawal. Thus, EPA is rescinding the withdrawal
of those aspects of the ACC program waiver that were
based on NHTSA’s actions in SAFE 1.
Section VII addresses SAFE 1’s interpretive view
of section 177 that States adopting California’s new
motor vehicle emission standards could not adopt
12
86 FR 74236.
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California’s GHG standards.13 EPA believes it was
both unnecessary and inappropriate in a waiver
proceeding to provide an interpretive view of the
authority of states to adopt California standards when
section 177 does not assign EPA any approval role in
states’ adoption of the standards. Therefore, as more
fully explained in Section VII, the Agency is
rescinding the interpretive view on section 177 set out
in SAFE 1. Section VIII discusses certain other
considerations, including the equal sovereignty
doctrine and California’s deemed-to-comply provision,
and concludes that they do not disturb EPA’s decision
to rescind the 2019 waiver withdrawal action.
Section IX contains the final decision to rescind the
withdrawal of the 2013 ACC program waiver. In
summary, I find that although EPA has inherent
authority to reconsider its prior waiver decisions, that
authority to reconsider is limited and may be
exercised only when EPA has made a clerical or
factual error or mistake, or where information shows
that factual circumstances or conditions related to the
waiver criteria evaluated when the waiver was
granted have changed so significantly that the
propriety of the waiver grant is called into doubt.
Further, EPA’s reconsideration may not be broader
than the limits Congress placed on its ability to deny
a waiver in the first place. Even where those
conditions are met, I believe that any waiver
withdrawal decision should consider other factors
such as the length of time since the initial decision and
California and others’ reliance on the initial decision.
Because there were no factual or clerical errors or
13
84 FR at 51310, 51350.
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such significantly changed factual circumstances or
conditions necessary to trigger EPA’s authority to
reconsider its previously granted waiver during the
SAFE 1 proceeding, I believe SAFE 1 was not an
appropriate exercise of EPA’s authority to reconsider.
In addition, even if it were an appropriate exercise,
EPA should not have departed from its traditional
interpretation of the second waiver prong (section
209(b)(1)(B)), which is properly focused on California’s
need for a separate motor vehicle emission program—
not specific standards—to meet compelling and
extraordinary conditions. And even under EPA’s
SAFE 1 interpretation of the second waiver prong, a
complete review of the factual record demonstrates
that California does need the GHG emission
standards and ZEV sales mandate to meet compelling
and extraordinary conditions in the State. Therefore,
EPA should not have withdrawn the ACC program
waiver based upon the second waiver prong in SAFE
1 and recission of the withdrawal is warranted.
Additionally, I find that EPA inappropriately relied on
NHTSA’s finding of preemption, now withdrawn, to
support its waiver withdrawal, and rescind the waiver
withdrawal on that basis as well. Finally,
independently in this action, I am rescinding the
interpretive views of section 177 that were set forth in
SAFE 1, because it was inappropriate to include those
views as part of this waiver proceeding.
For these reasons, I am rescinding EPA’s part of
SAFE 1 related to the CAA preemption of California’s
standards. This recission has the effect of bringing the
ACC program waiver back into force.
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II. Background
This section provides background information
needed to understand EPA’s decision process in SAFE
1, and this decision. This context includes: A summary
of California’s ACC program including the record on
the criteria pollutant benefits of its ZEV sales
mandate and GHG emission standards; a review of
the prior GHG emission standards waivers in order to
explain EPA’s historical evaluation of the second
waiver prong; an overview of the SAFE 1 decision; a
review of the petitions for reconsideration filed
subsequent to SAFE 1; and a description of the bases
and scope of EPA’s reconsideration of SAFE 1. EPA’s
sole purpose in soliciting public comment on its
reconsideration was to determine whether SAFE 1
was a valid and appropriate exercise of the Agency’s
authority. In the Notice of Reconsideration, EPA
therefore noted that reconsideration was limited to
SAFE 1 and that the Agency was not reopening the
ACC program waiver decision.
A. California’s Advanced Clean Car (ACC) Program
and EPA’s 2013 Waiver
On June 27, 2012, CARB notified EPA of its
adoption of the ACC program regulatory package that
contained amendments to its LEV III and ZEV sales
mandate, and requested a waiver of preemption under
section 209(b) to enforce regulations pertaining to this
program.141 The ACC program combined the control
2012 Waiver Request, EPA-HQ-OAR-2012-0562-0004 (2012
Waiver Request) at 1, 3-6. CARB’s LEV III standards include
both its criteria emission standards and its GHG emission
standards. SAFE 1 did not address the LEV III criteria emission
14
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of smog- and soot-causing pollutants and GHG
emissions into a single coordinated package of
requirements for passenger cars, light-duty trucks,
and medium-duty passenger vehicles (as well as
limited requirements related to heavy-duty vehicles
for certain model years).15
In its 2012 waiver request, CARB noted that the
2012 ZEV amendments would also result in additional
criteria pollutant benefits in California in comparison
to the earlier ZEV regulations and would likely
provide benefits beyond those achieved by complying
with the LEV III criteria pollutant standard for
conventional vehicles only. CARB attributed these
benefits not to vehicle emissions reductions
specifically, but to increased electricity and hydrogen
use that would be more than offset by decreased
standards and as such the ACC program waiver remained in
place. SAFE 1 did address CARB’s GHG emission standards and
ZEV sales mandate and this action addresses these two
standards as well. As noted in CARB’s 2012 Waiver Request,
these three standards are interrelated and comprehensive in
order to address the State’s serious air quality problems
including its criteria pollutants and climate change challenges.
As noted in CARB’s waiver request, “[a]t the December 2009
hearing, the Board adopted Resolution 09-66, reaffirming its
commitment to meeting California’s long term air quality and
climate change reduction goals through commercialization of
ZEV technologies. The Board further directed staff to consider
shifting the focus of the ZEV regulation to both GHG and criteria
pollutant emission reductions, commercializing ZEVs and
PHEVs in order to meet the 2050 goals, and to take into
consideration the new LEV fleet standards and propose revisions
to the ZEV regulation accordingly.” 2012 Waiver Request at 2
(emphasis added). EPA stated in SAFE 1 that California’s ZEV
standard initially targeted only criteria pollutants. 84 FR at
51329. See also 78 FR at 2118.
15
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gasoline production and refinery emissions.16 CARB’s
waiver request attributed the criteria emissions
benefits to its LEV III criteria pollutant fleet standard
and did not include similar benefits from its ZEV sales
mandate. According to the request, the fleet would
become cleaner regardless of the ZEV sales mandate
because the ZEV sales mandate is a way to comply
with the LEV III standards and, regardless of the ZEV
sales mandate, manufacturers might adjust their
compliance response to the standard by making less
polluting conventional vehicles. CARB further
explained that because upstream criteria and PM
emissions are not captured in the LEV III criteria
pollutant standard, net upstream emissions are
reduced through the increased use of electricity and
concomitant reductions in fuel production. 17
On August 31, 2012, EPA issued a notice of
opportunity for public hearing and written comment
on CARB’s request and solicited comment on all
aspects of a full waiver analysis for such request
under the criteria of section 209(b).18 Commenters
opposing the waiver asked EPA to deny the waiver
under the second waiver prong, section 209(b)(1)(B),
as it applied to the GHG provisions in the ACC
Program, calling on EPA to adopt an alternative
interpretation of that provision focusing on
California’s need for the specific standards. Following
public notice and comment and based on its
traditional interpretation of section 209(b), on
16
2012 Waiver Request at 6.
17
Id. at 15-16.
18
77 FR 53119 (August 31, 2012).
76a
January 9, 2013, EPA granted California’s request for
a waiver of preemption to enforce the ACC program
regulations.19 The traditional interpretation, which
EPA stated is the better interpretation of section
209(b)(1)(B), calls for evaluating California’s need for
a separate motor vehicle emission program to meet
compelling and extraordinary conditions. 20 As
explained, EPA must grant a waiver to California
unless the Administrator makes at least one of the
three statutorily-prescribed findings in section
209(b)(1). Concluding that opponents of the waiver did
not meet their burden of proof to demonstrate that
California does not have such need, EPA found that it
Set forth in the ACC program waiver decision is a summary
discussion of EPA’s earlier decision to depart from its traditional
interpretation of section 209(b)(1)(B) (the second waiver prong)
in the 2008 waiver denial for CARB’s initial GHG standards for
certain earlier model years along with EPA’s return to the
traditional interpretation of the second prong in the waiver
issued in 2009. 78 FR at 2125-31. These interpretations are
discussed more fully in Section III.
19
Id. at 2128 (“The better interpretation of the text and
legislative history of this provision is that Congress did not
intend this criterion to limit California’s discretion to a certain
category of air pollution problems, to the exclusion of others. In
this context it is important to note that air pollution problems,
including local or regional air pollution problems, do not occur in
isolation. Ozone and PM air pollution, traditionally seen as local
or regional air pollution problems, occur in a context that to some
extent can involve long range transport of this air pollution or its
precursors. This long range or global aspect of ozone and PM can
have an impact on local or regional levels, as part of the
background in which the local or regional air pollution problem
occurs.”).
20
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could not deny the waiver under the second waiver
prong.21
Without adopting the alternative interpretation,
EPA noted that, to the extent that it was appropriate
to examine the need for CARB’s specific GHG
standards to meet compelling and extraordinary
conditions, EPA had explained at length in its earlier
2009 GHG waiver decision that California does have
compelling and extraordinary conditions directly
related to regulation of GHGs. This conclusion was
supported by additional evidence submitted by CARB
in the ACC program waiver proceeding, including
reports that demonstrate record-setting wildfires,
deadly heat waves, destructive storm surges, and loss
of winter snowpack. Many of these extreme weather
events and other conditions have the potential to
dramatically affect human health and well-being.22
Because EPA received comment on this issue during the ACC
program waiver proceeding, as it pertained to both CARB’s GHG
emission standards and ZEV sales mandate, the Agency
recounted the interpretive history associated with standards for
both GHG emissions and criteria air pollutants to explain EPA’s
belief that section 209(b)(1)(B) should be interpreted the same
way for all air pollutants. Id. at 2125-31 (“As discussed above,
EPA believes that the better interpretation of the section
209(b)(1)(B) criterion is the traditional approach of evaluating
California’s need for a separate motor vehicle emission program
to meet compelling and extraordinary conditions. Applying this
approach with the reasoning noted above, with due deference to
California, I cannot deny the waiver.”).
21
Id. at 2126-29. Within the 2009 GHG waiver, and again in the
2013 ACC program waiver, EPA explained that the traditional
approach does not make section 209(b)(1)(B) a nullity, as EPA
must still determine whether California does not need its motor
22
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Similarly, to the extent that it was appropriate to
examine the need for CARB’s ZEV sales mandate,
EPA noted that the ZEV sales mandate in the ACC
program enables California to meet both its air quality
and climate goals into the future. EPA recognized that
CARB’s coordinated strategies reflected in the ACC
program for addressing both criteria pollutants and
GHGs and the magnitude of the technology and
energy transformation needed to meet such goals. 23
Therefore, EPA determined that, to the extent the
second waiver prong should be interpreted to mean a
need for the specific standards at issue, CARB’s GHG
emission standards and ZEV sales mandate satisfy
such a finding.
In the context of assessing the need for the specific
ZEV sales mandate in the ACC program waiver, EPA
noted CARB’s intent in the redesign of the ZEV
regulation of addressing both criteria pollutants and
GHG emissions, and CARB’s demonstration of “the
magnitude
of
the
technology
and
energy
transformation needed from the transportation sector
and associated energy production to meet . . . the goals
vehicle program to meet compelling and extraordinary conditions
as discussed in the legislative history. Conditions in California
may one day improve such that it may no longer have a need for
its motor vehicle program.
Id. at 2131 (“Whether or not the ZEV standards achieve
additional reductions by themselves above and beyond the LEV
III GHG and criteria pollutant standards, the LEV III program
overall does achieve such reductions, and EPA defers to
California’s policy choice of the appropriate technology path to
pursue to achieve these emissions reductions. The ZEV
standards are a reasonable pathway to reach the LEV III goals,
in the context of California’s longer-term goals.”).
23
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set forth by California’s climate change requirements”
and found that the ZEV standards would help
California achieve those “long term emission benefits
as well as . . . some [short-term] reduction in criteria
pollutant emissions.” 24
B. Prior Waivers for GHG Standards
For over fifty years, EPA has evaluated
California’s requests for waivers of preemption under
section 209(b), primarily considering CARB’s motor
vehicle emission program for criteria pollutants. 25
More recently, the Agency has worked to determine
how section 209(b)(1)(B) should be interpreted and
applied to GHG standards, including consideration of
the relationship of GHG standards to California’s
historical air quality problems, the public health
impacts of GHG emissions on NAAQS pollutants, and
the direct impacts of GHG emissions and climate
change on California and its inhabitants. While the
Id. at 2130-31. See also 2012 Waiver Request at 15-16); CARB
Supplemental Comments, EPA-HQ-OAR-2012-0562-0373 at 4
(submitted November 14, 2012).
24
EPA notes that the 1990 amendments to the CAA added
subsection (e) to section 209. Subsection (e) addresses the
preemption of State or political subdivision regulation of
emissions from nonroad engines or vehicles. Section 209(e)(2)(A)
sets forth language similar to section 209(b) in terms of the
criteria associated with EPA waiving preemption, in this
instance for California nonroad vehicle and engine emission
standards. Congress directed EPA to implement subsection (e).
See 40 CFR part 1074. EPA review of CARB requests submitted
under section 209(e)(2)(A)(ii) includes consideration of whether
CARB needs its nonroad vehicle and engine program to meet
compelling and extraordinary conditions. See 78 FR 58090
(September 20, 2013).
25
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SAFE 1 withdrawal and revocation of the waiver for
CARB’s ACC program represents a singular snapshot
of this task, it is important to examine EPA’s longstanding and consistent waiver practice in general,
including EPA’s interpretations in prior waiver
decisions pertaining to CARB’s GHG emission
standards, in order to determine whether EPA
properly applied the waiver criterion in section
209(b)(1)(B) in SAFE 1.26
Historically, EPA has consistently interpreted and
applied the second waiver prong by considering
whether California needed a separate motor vehicle
emission program as compared to the specific
standards at issue to meet compelling and
extraordinary conditions.27 At the same time, in
response to commenters that have argued that EPA is
required to examine the specific standards at issue in
the waiver request, EPA’s practice has been to
nevertheless review the specific standards to
determine whether California needs those individual
standards to meet compelling and extraordinary
conditions.28 This does not mean that EPA has
EPA notes that, in the history of EPA waiver decisions, it has
only denied a waiver once (in 2008) and withdrawn a waiver once
(in 2019). Each instance was under this second waiver prong in
section 209(b)(1)(B).
26
27
49 FR 18887, 18890 (May 3, 1984).
28 For example, in EPA’s 2009 GHG waiver that reconsidered the
2008 GHG waiver denial, the Agency noted that “Given the
comments submitted, however, EPA has also considered an
alternative interpretation, which would evaluate whether the
program or standards has a rational relationship to contributing
to amelioration of the air pollution problems in California. Even
81a
adopted an “alternative approach” and required a
demonstration for the need for specific standards;
rather, this additional Agency review has been
afforded to address commenters’ concerns and this
secondary analysis has been done to support the
Agency’s primary assessment. For example, EPA
granted an authorization for CARB’s In-use Off-road
Diesel Standards (Fleet Requirements) that included
an analysis under both approaches.29 The only two
departures from this traditional approach occurred
first in 2008 when EPA adopted an “alternative
approach” to the second waiver prong and second in
2019 when EPA adopted the “SAFE 1 interpretation”
of the second waiver criterion.
under this approach, EPA’s inquiry would end there. California’s
policy judgment that an incremental, directional improvement
will occur and is worth pursuing is entitled, in EPA’s judgment,
to great deference. EPA’s consistent view is that it should give
deference to California’s policy judgments, as it has in past
waiver decisions, on California’s choice of mechanism used to
address air pollution problems. EPA does not second-guess the
wisdom or efficacy of California’s standards. EPA has also
considered this approach with respect to the specific GHG
standards themselves, as well as California’s motor vehicle
emissions program.” 74 FR at 32766 (citing to Motor & Equip.
Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095, 1110-11 (D.C. Cir. 1979)).
78 FR at 58090. The United States Court of Appeals for the
Ninth Circuit reviewed EPA’s grant of a waiver of preemption
under the traditional approach, and because of comments
seeking an alternative interpretation, an assessment of the need
for the standards contained in California’s request. Dalton
Trucking v. EPA, No. 13-74019 (9th Cir. 2021) (finding that EPA
was not arbitrary in granting the waiver of preemption under
either approach). The court opinion noted that “[t]his disposition
is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.”
29
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EPA’s task of interpreting and applying section
209(b)(1)(B) to California’s GHG standards and
consideration of the State’s historical air quality
problems that now include the public health and
welfare challenge of climate change began in 2005,
with CARB’s waiver request for 2009 and subsequent
model years’ GHG emission standards. On March 6,
2008, EPA denied the waiver request based on a new
interpretive finding that section 209(b) was intended
for California to enforce new motor vehicle emission
standards that address local or regional air pollution
problems, and an Agency belief that California could
not demonstrate a “need” under section 209(b)(1)(B)
for standards intended to address global climate
change problems. EPA also employed this new
alternative interpretation to state a belief that the
effects of climate change in California are not
compelling and extraordinary in comparison with the
rest of the country. Therefore, in the 2008 waiver
denial, EPA did not evaluate whether California had
a need for its motor vehicle emission program to meet
compelling and extraordinary conditions (the
traditional interpretation) but rather focused on the
specific GHG emission standard in isolation and not
in conjunction with the other motor vehicle emission
standards for criteria pollutants.
In 2009, EPA initiated a reconsideration of the
2008 waiver denial. The reconsideration resulted in
granting CARB a waiver for its GHG emission
standards commencing in the 2009 model year. 30 In
granting the waiver, EPA rejected the Agency’s
alternative interpretation of the second waiver prong
30
74 FR 32743, 32745 (July 8, 2009).
83a
announced in the 2008 waiver denial. Instead, EPA
returned to its traditional approach of evaluating
California’s need for a separate motor vehicle
emission program to meet compelling and
extraordinary conditions because the Agency viewed
it as the better interpretation of the second waiver
prong. Under the traditional interpretation, EPA
found that the opponents of the waiver had not met
their burden of proof to demonstrate that California
did not need its motor vehicle emission program to
meet compelling and extraordinary conditions. In
responding to comments on this issue, EPA also
determined that, even if the alternative interpretation
were to be applied, the opponents of the waiver had
not demonstrated that California did not need its
GHG emissions standards to meet compelling and
extraordinary conditions.31
Since EPA’s 2009 GHG waiver decision and before
SAFE 1 the Agency applied the traditional
interpretation of the second waiver prong in its GHGrelated waiver proceedings, including the on-going
review of California’s GHG emission standards for
vehicles. In the first instance, in 2009, CARB adopted
amendments to its certification requirements that
would accept demonstration to the Federal GHG
74 FR at 32759-67. For example, EPA noted that the analysis
of the need for CARB’s GHG standards in the 2008 waiver denial
failed to consider that although the factors that cause ozone are
primarily local in nature and that ozone is a local or regional air
pollution problem, the impacts of global climate change can
nevertheless exacerbate this local air pollution problem. EPA
noted that California had made a case that its greenhouse gas
standards are linked to amelioration of its smog problems. See
also 76 FR 34693 (June 14, 2011).
31
84a
standards as compliance with CARB’s GHG program.
This provision is known as a “deemed-to-comply”
provision.32 In 2011, EPA determined that this
deemed-to-comply provision was within-the-scope of
the waiver issued in July 2009, relying on the
traditional interpretation of the second waiver
prong.33 As such, in the June 14, 2011 within-the-
California Code of Regulations, Title 13 1961(a)(1)(B). Under
this provision, automakers could comply with the California
GHG standards for model years 2017-2025 by meeting Federal
GHG standards for the same model years.
32
76 FR 34693. EPA’s “within-the-scope” decisions are generally
performed when CARB has amended its regulations that were
previously waived by EPA under section 209(b)(1) and include an
analysis of whether EPA’s prior evaluation of the waiver criteria
has been undermined by CARB’s amendments. EPA received
comment during the reconsideration of SAFE 1 that questioned
whether CARB needed its GHG standards if it was otherwise
accepting compliance with the Federal GHG standards. EPA
addressed the issue in its final decision (76 FR at 34696-98) and
continues to believe EPA’s analysis applies. The existence of
federal emission standards that CARB may choose to harmonize
with or deem as compliance with its own State standards (or that
CARB may choose to set more stringent standards) does not on
its own render California’s as not needed. CARB continues to
administer an integrated and comprehensive motor vehicle
emission program (including its ZEV sales mandate and GHG
emission standards and other applicable emission standards for
light-duty vehicles) and this program continues to evolve to
address California’s serious air quality issues. CARB’s decision
to select some federal emission standards as sufficient to comply
with its own State emission standards does not negate the overall
design and purpose of section 209 of the CAA. In the within-thescope decision issued in 2011, EPA agreed with Global
Automakers comment that the deemed-to-comply provision
renders emission benefits equally protective as between
California and Federal programs. Id. at 34696.
33
85a
scope decision EPA determined that CARB’s 2009
amendments did not affect or undermine the Agency’s
prior determination made in the 2009 GHG waiver
decision, including the technological feasibility
findings in section 209(b)(1)(C). 34 EPA also acted on
two requests for waivers of preemption for CARB’s
heavy-duty (HD) tractor-trailer GHG emission
standards.35 Once again, EPA relied upon its
traditional approach of evaluating California’s need
for a separate motor vehicle emission program to meet
compelling and extraordinary conditions and found
that no evidence had been submitted to demonstrate
that California no longer needed its motor vehicle
emission program to meet compelling and
extraordinary conditions.36 EPA’s second waiver for
34
Id. at 34696-97.
The first HD GHG emissions standard waiver related to
certain new 2011 and subsequent model year tractor-trailers. 79
FR 46256 (August 7, 2014). In this waiver decision EPA
responded to comments regarding whether CARB had quantified
how the GHG regulations would contribute to attainment of
ozone or particulate matter standards by noting that nothing in
section 209(b)(1)(B) calls for California to quantify specifically
how its regulations would affect attainment of the NAAQS in the
State. Rather, EPA noted, the relevant question is whether
California needs its own motor vehicle emission program and not
whether there is a need for specific standards. The second HD
GHG emissions standard waiver related to CARB’s “Phase I”
regulation for 2014 and subsequent model year tractor-trailers.
81 FR 95982 (December 29, 2016).
35
Relatedly, California explained the need for these standards
based on projected “reductions in NOx emissions of 3.1 tons per
day in 2014 and one ton per day in 2020 due to the HD GHG
Regulations. California state[d] that these emissions reductions
will help California in its efforts to attain applicable air quality
36
86a
the HD GHG emission standards made a similar
finding that California’s compelling and extraordinary
conditions continue to exist under the traditional
approach for the interpretation of the second waiver
criterion.37
C. SAFE 1 Decision
In 2018, NHTSA issued a proposal for new
Corporate Average Fuel Economy (CAFE) standards
that must be achieved by each manufacturer for its car
and light-duty truck fleet while EPA revisited its
standards. California further projects that the HD GHG
Regulations will reduce GHG emissions in California by
approximately 0.7 million metric tons (MMT) of carbon dioxide
equivalent emissions (CO2e) by 2020.” 79 FR at 46261. See also
81 FR at 95982.
81 FR at 95987. At the time of CARB’s Board adoption of the
HD Phase I GHG regulation, CARB determined in Resolution 1350 that California continues to need its own motor vehicle
program to meet serious ongoing air pollution problems. CARB
asserted that “[t]he geographical and climatic conditions and the
tremendous growth in vehicle population and use that moved
Congress to authorize California to establish vehicle standards
in 1967 still exist today. EPA has long confirmed CARB’s
judgment, on behalf of the State of California, on this matter.”
See EPA Air Docket at regulations.gov at EPA-HQ-OAR-20160179- 0012. In enacting the California Global Warming Solutions
Act of 2006, the Legislature found and declared that “Global
warming poses a serious threat to the economic well-being, public
health, natural resources, and the environment of California.
The potential adverse impacts of global warming include the
exacerbation of air quality problems, a reduction in the quality
and supply of water to the state from the Sierra snowpack, a rise
in sea levels resulting in the displacement of thousands of coastal
businesses and residences, damage to the marine ecosystems and
the natural environment, and an increase in the incidences of
infectious diseases, asthma, and other health-related problems.”
37
87a
light-duty vehicle GHG emissions standards for
certain model years in the SAFE Proposal.38 EPA also
proposed to withdraw the waiver for the ACC program
GHG emission standards and ZEV sales mandate,
referencing both sections 209(b)(1)(B) and (C). EPA
posited that since the grant of the initial waiver a
reassessment of California’s need for its GHG
standards and ZEV sales mandate under the second
waiver prong, section 209(b)(1)(B), was appropriate.
EPA further posited that its own Federal GHG
rulemaking in the SAFE proposal raised questions
about the feasibility of CARB’s standards under the
third waiver prong, section 209(b)(1)(C).39 In addition,
EPA reasoned that the SAFE proposal presented a
unique situation that required EPA to consider the
implications of NHTSA’s proposed conclusion that
California’s GHG emission standards and ZEV sales
mandate were preempted by EPCA.40 EPA thus also
posited that state standards preempted under EPCA
cannot be afforded a valid section 209(b) waiver and
then proposed that it would be necessary to withdraw
The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for
Model Years 2021-2026 Passenger Cars and Light Trucks, 83 FR
at 42986.
38
As explained below, EPA did not make a determination
regarding section 209(b)(1)(C) in SAFE 1.
39
”To the extent that NHTSA has determined that these
standards are void ab initio because EPCA preempts standards
that relate to fuel economy, that determination presents an
independent basis for EPA to consider the validity of the initial
grant of a waiver for these standards, separate and apart from
EPA’s analysis under the criteria that invalidate a waiver
request.” 84 FR at 51338.
40
88a
the waiver separate and apart from section
209(b)(1)(B) and (C) if NHTSA finalized its
interpretation regarding preemption under EPCA.
During the SAFE 1 proceeding, EPA received
additional information demonstrating that the ZEV
sales mandate plays a role in reducing criteria
pollution, including CARB’s comments that EPA’s
prior findings in the ACC program waiver were
correct. As noted by a number of States and Cities,
“[f]or example, CARB modeled the consequences of the
actions proposed in SAFE, which included
withdrawing California’s waiver for its GHG and ZEV
standards and freezing the federal GHG standards at
MY 2020 levels. CARB concluded these actions, which
would eliminate California’s ZEV and GHG standards
and leave in place only federal GHG standards at MY
2020 levels, would increase NOx emissions in the
South Coast air basin alone by 1.24 tons per day.” 41
The SAFE 1 record also includes information that
demonstrates that California is “one of the most
climate challenged” regions of North America, and
that it is home to some of the country’s hottest and
driest areas, which are particularly threatened by
record-breaking heatwaves, sustained droughts, and
wildfire, as a result of GHG emissions.42 This record
also includes information from the United States
States and Cities in Support of EPA Reversing Its SAFE 1
Actions (States and Cities), Docket No. EPA-HQ-OAR-20210257-0132 at 10 (citing CARB, Docket No. NHTSA-2018-006711873 at 287-88, 290-91 (upstream emission impacts), 308).
41
States and Cities at 43-47 (citing EPA-HQ-OAR-2018-02835481, EPA-HQ-OAR-2018-0283-5683, and EPA-HQ-OAR-20180283-5054).
42
89a
Fourth National Climate Assessment that documents
the impact of climate change in exacerbating
California’s record-breaking fires seasons, multi-year
drought, heat waves, and flood risk, and notes that
California faces a particular threat from sea-level rise
and ocean acidification and that the State has “the
most valuable ocean-based economy in the country.” 43
EPA received information during the SAFE 1 public
comment period regarding the criteria emission
benefits of CARB’s ZEV sales mandate and GHG
emission standards.44
Id. at 45 (EPA-HQ-OAR-2018-0283-7447—U.S. Global
Research Program, Impacts, Risks, and Adaptation in the United
States: Fourth National Climate Assessment, Volume II, Chapter
25., 2018). (E.g., “The California coast extends 3,400 miles (5,500
km), 8 with 200,000 people living 3 feet (0.9 m) or less above sea
level.9 The seaports of Long Beach and Oakland, several
international airports, many homes, and high-value
infrastructure lie along the coast. In addition, much of the
Sacramento-San Joaquin River Delta is near sea level. California
has the most valuable ocean-based economy in the country,
employing over half a million people and generating $20 billion
in wages and $42 billion in economic production in 2014.10
Coastal wetlands buffer against storms, protect water quality,
provide habitat for plants and wildlife, and supply nutrients to
fisheries. Sea level rise, storm surges, ocean warming, and ocean
acidification are altering the coastal shoreline and ecosystems.”
43
During the current reconsideration proceeding, EPA received
additional comment regarding the criteria pollution benefits of
California’s GHG and ZEV standards. The States and Cities at
10-11. Likewise, CARB notes this connection in comments on the
SAFE proposal. Multi-State SAFE Comments, EPA-HQ-OAR2018-0283-5481 at 24. The States and Cities provided
supplemental information in response to the Notice of
Reconsideration by submitting California’s latest analyses of the
criteria pollutant benefits of its GHG standards. For example,
44
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On September 27, 2019, EPA and NHTSA
published the final SAFE 1 action that promulgated
preemption regulations which supported NHTSA’s
conclusion that EPCA preempted California’s GHG
standards and ZEV sales mandate. In the same action,
EPA withdrew the waiver of preemption for California
to enforce the ACC program GHG and ZEV sales
mandate on two grounds.45
First, in SAFE 1 the Agency posited that standards
preempted under EPCA could not be afforded a valid
waiver of preemption under section 209(b). EPA
explained that Agency pronouncements in the ACC
program waiver decision on the historical practice of
disregarding the preemptive effect of EPCA in the
context of evaluating California’s waiver applications
were “inappropriately broad, to the extent it suggested
that EPA is categorically forbidden from ever
determining that a waiver is inappropriate due to
consideration of anything other than the `criteria’ or
`prongs’ at section 209(b)(1)(B)(A)-(C).” 46 EPA further
explained that those pronouncements were made in
waiver proceedings where the Agency was acting
CARB estimated those benefits for calendar years by which the
South Coast air basin must meet increasingly stringent NAAQS
for ozone: 2023, 2031, and 2037. States and Cities app. A at 2-4,
app. C at 8-9.
84 FR at 51328-29. Parties subsequently brought litigation
against EPA on its SAFE 1 decision. See generally Union of
Concerned Scientists, et al. v. NHTSA, et al., No. 19-1230 (D.C.
Cir. filed Oct. 28, 2019) (on February 8, 2021, the D.C. Circuit
granted the Agencies’ motion to hold the case in abeyance in light
of the reconsideration of the SAFE 1 action). EPA also received
three petitions for reconsideration of this waiver withdrawal.
45
46
84 FR at 51338.
91a
solely on its own in contrast to a joint action with
NHTSA such as SAFE 1. Additionally, EPA expressed
its intention not to consider factors other than
statutory criteria set out in section 209(b)(1)(A)-(C) in
future waiver proceedings, explaining that addressing
the preemptive effect of EPCA and its implications for
EPA’s waiver for California’s GHG standards and
ZEV sales mandate was uniquely called for in SAFE 1
because EPA and NHTSA were coordinating
regulatory actions in a single notice.47
Second, EPA withdrew the waiver for the GHG
standards and ZEV sales mandate under the second
waiver prong, section 209(b)(1)(B), on two alternative
grounds. Specifically, EPA determined first that
California does not need the GHG standards “to meet
compelling and extraordinary conditions,” under
section 209(b)(1)(B), and second, even if California
does have compelling and extraordinary conditions in
the context of global climate change, California does
not “need” the specific GHG standards under section
209(b)(1)(B) because they will not meaningfully
address global air pollution problems of the type
associated with GHG emissions.48 EPA also reasoned
that because CARB had characterized the ZEV sales
mandate as a compliance mechanism for GHG
standards, both were “closely interrelated” given the
overlapping compliance regimes for the ACC program,
and as a result the ZEV sales mandate was
inextricably interconnected with CARB’s GHG
47
Id.
48
Id. at 51341-42.
92a
standards.49 In support of its overall determination
that the ZEV sales mandate was not needed to meet
compelling and extraordinary conditions, EPA relied
on a single statement in the ACC program waiver
support document where CARB did not attribute
criteria emission reductions to the ZEV sales
mandate, but rather noted its LEV III criteria
pollutant fleet standard was responsible for those
emission reductions.50 Relying on this reasoning, EPA
also withdrew the waiver for the ZEV sales mandate
under the second waiver prong finding that California
had no “need” for its own ZEV sales mandate.
In withdrawing the waiver, EPA relied on an
alternative view of the scope of the Agency’s analysis
of California waiver requests and posited that reading
“such State standards” as requiring EPA to only and
always consider California’s entire motor vehicle
program would limit the application of this waiver
prong in a way that EPA did not believe Congress
intended.51 EPA further noted that the Supreme
Court had found that CAA provisions may apply
differently to GHGs than they do to traditional
pollutants in UARG v. EPA, 134 S. Ct. 2427 (2014)
49
Id. at 51337.
50
Id. at 51330.
In other words, EPA asserted that once it determines that
California needed its very first set of submitted standards to
meet extraordinary and compelling conditions, EPA would never
have the discretion to determine that California did not need any
subsequent standards for which it sought a successive waiver.
EPA based its reading also on an assertion of ambiguity in the
meaning of “such State standards” in section 209(b)(1)(B).
51
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(partially reversing the GHG “Tailoring” Rule on
grounds that the CAA section 202(a) endangerment
finding for GHG emissions from motor vehicles did not
compel regulation of all sources of GHG emissions
under the Prevention of Significant Deterioration and
Title V permit programs). EPA then interpreted
section 209(b)(1)(B) as requiring a particularized,
local nexus between (1) pollutant emissions from
sources, (2) air pollution, and (3) resulting impact on
health and welfare.52 Interpreting section 209(b)(1)(C)
to be limited to the specific standards under the
waiver, EPA stated that “such State standards” in
sections 209(b)(1)(B) and (C) should be read
consistently with each other, which EPA asserted was
a departure from the traditional approach where this
phrase in section 209(b)(1)(B) is read as referring back
to “in the aggregate” in section 209(b)(1).53
52
Id. at 51339-40.
53 Id. at 51344-45.EPA notes that this SAFE 1 position was taken
despite the Agency previously stating in the ACC program
waiver that “Similarly, although the Dealers might suggest that
EPA only be obligated to determine whether each of CARB’s ACC
regulatory components, in isolation, is consistent with section
202(a) we believe the better approach is to determine the
technological feasibility of each standard in the context of the
entire regulatory program for the particular industry category.
In this case, we believe CARB has in fact recognized the
interrelated, integrated approach the industry must take in
order to address the regulatory components of the ACC program.
As noted above, the House Committee Report explained as part
of the 1977 amendments to the Clean Air Act that California was
to be afforded flexibility to adopt a complete program of motor
vehicle emission controls (emphasis added). As such, EPA
believes that Congress intended EPA to afford California the
94a
In the SAFE proposal, as an additional basis for
the waiver withdrawal, EPA proposed to find that
CARB’s ZEV sales mandate and GHG standards are
not consistent with section 202(a) of the CAA under
the third waiver prong, section 209(b)(1)(C). 54
However, in the final SAFE 1 action, EPA and NHTSA
explained they were not finalizing the proposed
assessment regarding the technological feasibility of
the Federal GHG and CAFE standards for MY 2021
through 2025 in SAFE 1, and thus EPA did not
finalize any determination with respect to section
209(b)(1)(C).55
In justifying the withdrawal action in SAFE 1,
EPA opined that the text, structure, and context of
section 209(b) supported EPA’s authority to
reconsider prior waiver grants. Specifically, EPA
asserted that the Agency’s authority to reconsider the
grant of ACC program waiver was implicit in section
209(b) given that revocation of a waiver is implied in
the authority to grant a waiver. The Agency noted that
further support for the authority to reconsider could
be found in a single sentence in the 1967 legislative
history of provisions now codified in sections 209(a)
broadest possible discretion in selecting the best means to protect
the health of its citizens and the public welfare.32 EPA believes
this intent extends to CARB’s flexibility in designing its motor
vehicle emission program and evaluating the aggregate effect of
regulations within the program.” 78 FR at 2217.
54
83 FR at 43240.
84 FR at 51350. EPA explained that it may make a
determination in connection with a future final action with
regard to Federal standards. EPA’s subsequent regulation to
issue Federal standards did not address this issue. 85 FR 24174.
55
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and (b) and the judicial principle that agencies possess
inherent authority to reconsider their decisions.
According to the Senate report from the 1967 CAA
amendments, the Administrator has “the right . . . to
withdraw the waiver at any time [if] after notice and
an opportunity for public hearing he finds that the
State of California no longer complies with the
conditions of the waiver.” 56 EPA also noted that,
subject to certain limitations, administrative agencies
possess inherent authority to reconsider their
decisions in response to changed circumstances: “It is
well settled that EPA has inherent authority to
reconsider, revise, or repeal past decisions to the
extent permitted by law so long as the Agency
provides a reasoned explanation.” 57 This authority
exists in part because EPA’s interpretations of the
statutes it administers “are not carved in stone.” 58
Finally, in SAFE 1, EPA provided an interpretive
view of section 177 as not authorizing other states to
adopt California’s GHG standards for which EPA had
granted a waiver of preemption under section 209(b).
Although section 177 does not require states that
adopt California’s emission standards to submit such
regulations for EPA review and provides no statutory
role for EPA in states’ decision to adopt California’s
standards, EPA chose to nevertheless provide an
interpretation that this provision is available only to
states with approved nonattainment plans. EPA
stated that nonattainment designations exist only as
56
84 FR at 51332 (citing S. Rep. No. 90-403, at 34 (1967)).
57
Id. at 51333.
58
Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 863 (1984).
96a
to criteria pollutants and GHGs are not criteria
pollutants; therefore, states could not adopt GHG
standards under section 177. Notably, California in
previous waiver requests addressed the criteria
pollutant benefits of GHG emissions reductions,
specifically related to ground level ozone.
D. Petitions for Reconsideration
After issuing SAFE 1, EPA received three petitions
for reconsideration urging the Agency to reconsider
the waiver withdrawal of the ACC program’s GHG
standards and ZEV sales mandate and to rescind part
or all of the SAFE 1 action.59 The first Petition for
Clarification/Reconsideration was submitted by the
State of
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