Amicus Curiae Brief — Ohio, et al., Petitioners v. Environmental Protection Agency, et al.

No. 24-13

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

_________

BRIEF AMICI CURIAE OF THE STATES OF

IOWA, IDAHO, NEW HAMPSHIRE, NORTH

DAKOTA, SOUTH DAKOTA, TENNESSEE,

VIRGINIA, AND WYOMING SUPPORT OF

PETITIONERS

_________

BRENNA BIRD

Attorney General

ERIC WESSAN*

Solicitor General

PATRICK C. VALENCIA

Deputy Solicitor General

IOWA DEPT. OF JUSTICE

Hoover Office Building

Des Moines, Iowa 50309

(515) 823-9117

eric.wessan@ag.iowa.gov

Counsel for Amici Curiae

*Counsel of Record

(additional counsel listed at end)

i

QUESTION PRESENTED

May Congress pass a law under the Commerce Clause

that empowers one State to exercise sovereign power

that the law denies to all other States?

ii

TABLE OF CONTENTS

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

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES ....................................... iv

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

I. EQUAL SOVEREIGNTY MUST BE

CONSIDERED IN REGULATIONS UNDER THE

COMMERCE POWER ............................................. 4

1. States did not give up their right to equal

sovereignty when they adopted The Constitution.

........................................................................ 4

2. Since equal sovereignty applies to the

Reconstruction Amendments, it must also apply

to exercises of commerce power. ........................... 6

II.

THE COURT SHOULD RECOGNIZE

EQUAL SOVEREIGNTY AS A LIMIT ON THE

COMMERCE POWER AND REVERSE THE D.C.

CIRCUIT................................................................... 9

1. Even under Shelby County’s framework, the

waiver provisions cannot stand. ........................... 9

2. Affirming equal sovereignty will not open

Pandora’s Box. ..................................................... 13

III.

THIS IS THE CASE TO AFFIRM EQUAL

SOVEREIGNTY. .................................................... 16

1. Opportunities to affirm equal sovereignty

are rare. ............................................................... 17

iii

2.

This case is an excellent vehicle. ................ 18

3. The waiver provisions threaten to throw

federalism off balance. ....................................... 19

CONCLUSION .......................................................... 21

ADDITIONAL COUNSEL ........................................ 22

iv

TABLE OF AUTHORITIES

Cases

American Automobile Mfrs. Assn. v. Cahill,

152 F.3d 196 (2d Cir. 1998).................................... 11

American Petroleum Inst. v. Jorling,

710 F. Supp. 421 (N.D.N.Y. 1989) ......................... 11

Bolln v. Nebraska,

176 U.S. 83 (1900) .................................................... 2

Case v. Toftus,

39 F. 730 (C.C.D. Or. 1889) .................................... 16

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)...................................... 12

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd.,

527 U.S. 666 (1999) .................................................. 9

Coyle v. Smith,

221 U.S. 559 (1911) .................................................. 4

Ctr. for Biological Diversity v. EPA,

722 F.3d 401 (D.C. Cir. 2013) ................................ 14

Disc. Inn, Inc. v. City of Chicago,

803 F.3d 317 (7th Cir. 2015) .................................. 18

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014) ................................................ 21

Franchise Tax Bd. v. Hyatt,

587 U.S. 230 (2019) .................................................. 4

HollyFrontier Cheyenne Refining, LLC v. Renewable

Fuels Association,

594 U.S. 382 (2021) ................................................ 22

In re Dry Max Pampers Litig.,

724 F.3d 714 (6th Cir. 2013) .................................. 18

v

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................ 23

Mayhew v. Burwell,

772 F.3d 80 (1st Cir. 2014)..................................... 19

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) ............................................ 15

Michigan v. EPA,

576 U.S. 743 (2015) ................................................ 21

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................ 22

New York v. U.S.,

505 U.S. 141 (1992) .............................................. 5, 6

Nw. Austin Mun. Utility Dist. No. One. v. Holder,

557 U.S. 193 (2009) ............................................ 8, 11

See NCAA v. Governor of New Jersey,

730 F.3d 208 (3d Cir. 2013).................................... 19

Seminole Tribe v. Florida,

517 U.S. 44 (1996) ................................................... 9

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) .... 2, 3, 7, 8, 9, 11, 13, 14, 16, 19

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ............................................ 8, 18

Stearns v. Minnesota,

179 U.S. 223 (1900) ................................................ 15

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

514 U.S. 779 (1995) .................................................. 6

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ................................................ 22

Virginia v. West Virginia,

246 U.S. 565 (1918) .................................................. 2

vi

Statutes

26 U.S.C. § 142 .......................................................... 16

28 U.S.C. § 3701 ........................................................ 19

42 U.S.C. § 10136 ...................................................... 16

42 U.S.C. § 3796bb .................................................... 16

42 U.S.C. § 6297 ........................................................ 17

42 U.S.C. § 7543 .......................................................... 2

42 U.S.C. § 7607(b) .................................................... 21

5 U.S.C. § 706 .............................................................. 2

Other Authorities

113 Cong. Rec. 30,948 (Nov. 2, 1967)........................ 13

95 Cong. Rec. 123 ...................................................... 13

Amy Coney Barrett, Statutory Stare Decisis in the

Courts of Appeals,

73 Geo. Wash. L. Rev. 317 (2005) .......................... 21

Bellia & Clark, The International Law Origins of

American Federalism,

120 Colum. L. Rev. 835 (2020). ................................ 7

Climate Change and Social Vulnerability in the

United States 12, EPA (Sept. 2021),

https://perma.cc/5VAE-9VLG ................................ 11

Leah Littman, Inventing Equal Sovereignty,

114 Mich. L. Rev. 1207 (2016) ......................... 14, 17

Patricia Wald, Regulation at Risk: Are Courts Part of

the Solution, or Most of the Problem?,

67 S. Cal. L. Rev. 621 (1994) .................................. 21

Thomas Colby, In Defense of the Equal Sovereignty

Principle,

65 Duke L. J. 1087 (2016) ................................ 16, 20

Regulations

vii

49 Fed. Reg. 18,887, 18890 (May 3, 1984) ................ 13

84 Fed. Reg. 51, 349 (2019) ....................................... 12

INTEREST OF AMICUS CURIAE

Amici curiae States of Iowa, Idaho, New

Hampshire, North Dakota, South Dakota, Tennessee,

Virginia, and Wyoming (“amici States”) submit this

brief in support of Petitioners, State of Ohio et al.,

urging this Court to reverse the District of Columbia

Circuit’s decision. That decision denied State

Petitioners’ equal sovereignty claim under the United

States Constitution.

Amici States have a strong interest in this

case’s outcome. First, the Environmental Protection

Agency’s decision to waive federal preemption of

California Regulations inflicts an unconstitutional

wound to the States’ equal sovereignty. Only

California can seek waivers while other States must

either adopt the EPA’s or California’s regulations. So

California may pursue regulatory innovation but

other States may not.

Second, California’s stringent regulatory

requirements burden Petitioner States with their

financial repercussions. California mandates that a

specific percentage of an automaker’s fleet must

consist of electric vehicles. That mandate surpasses

the current market demand for such vehicles,

compelling manufacturers to invest far more resources

than they would absent the regulations. Those added

expenses are inevitably passed down to consumers,

including Petitioner States, who are large-scale

vehicle purchasers. In essence, Petitioner States are

forced to subsidize California’s stringent regulatory

framework while also being barred from adopting

2

their own. Thus, California’s regulations creates an

unconstitutional double indignity for other States.

Those States must bear the economic strain of

subsidizing California’s regulations without equal

sovereignty to express their own policy preferences.

SUMMARY OF ARGUMENT

Waivers under Section 209 of the Clean Air Act

are unconstitutional because of the Constitution’s

fundamental principle of equal sovereignty. 42 U.S.C.

§ 7543. Therefore, the waiver issued under its

authority is “not in accordance with law” and

“contrary to constitutional right, power, privilege, or

immunity.” 5 U.S.C. §§ 706 (2)(A)–(B).

In ruling for the EPA, the D.C. Circuit

“overlook[ed] the truism that the Union under the

Constitution is essentially one of States equal in local

government power.” Virginia v. W. Va., 246 U.S. 565,

593 (1918). “[T]he whole Federal system is based upon

the fundamental principle of the equality of the States

under the Constitution.” Bolln v. Neb., 176 U.S. 83, 89

(1900). But the court below held that this fundamental

principle did not apply when Congress exercises its

commerce power. This is wrong. States enjoyed equal

sovereignty before they joined the union, and they did

not surrender it when they adopted the Constitution.

By adopting the Reconstruction Amendments,

States surrendered some of their equal sovereignty.

But Shelby County explained that the principle

remains. Shelby Cnty. v. Holder, 570 U.S. 529, 544

(2013). In evaluating whether legislation to enforce

the Amendments is “appropriate,” the courts must

3

consider the degree to which it infringes on equal

sovereignty. Id. at 537. Because equal sovereignty

remains part of America’s legal background even

where evaluating actions taken pursuant to the

Reconstruction Amendments, the principle must be

considered in cases relating to the Commerce power.

In holding otherwise, the D.C. Circuit failed to

disaggregate Congress’ power related to State

sovereignty under the Reconstruction Amendments

from Shelby County.

Because the Reconstruction Amendments did

not impede equal sovereignty under the Constitution’s

commerce powers, Ohio’s challenge should proceed.

Evaluating the Clean Air Act’s waiver provisions

under the Shelby County framework, the waiver

provisions fail to show that they are an appropriate

means of remedying a “local evil.” South Carolina v.

Katzenbach, 383 U.S. 301, 329 (1966). Air pollution,

particularly the greenhouse gas emissions that

California seeks to stringently regulate, is a global

problem, not a local one.

This Court should build out the principles

underlying equal sovereignty. Here, the Court can

make good on the guarantee of equal sovereignty

without jeopardizing enforceability of other federal

laws. The waiver provisions are part of a small and

discrete class of laws that allow one State to regulate

in areas that others cannot. Equal sovereignty does

not require equal treatment, but it does require

equality in the sovereign “power, dignity, and

authority” Coyle v. Smith, 221 U.S. 559, 567 (1911).

4

ARGUMENT

I.

EQUAL SOVEREIGNTY MUST BE

CONSIDERED

IN

REGULATIONS

UNDER THE COMMERCE POWER

Equal Sovereignty is a fundamental principle of

the Constitution, “implicit in its structure and

supported by historical practice.” Franchise Tax Bd. v.

Hyatt, 587 U.S. 230, 247 (2019). It traces its genesis to

the States as sovereigns before the Union. And from

there, it was never lost. States did not give up equal

sovereignty when they adopted the Constitution.

Rather, they divided sovereignty between the States

and the Federal government. In so doing, they

retained their sovereignty. While States compromised

their equal sovereignty in adopting the Reconstruction

Amendments, even there, the principle remains

important in evaluating legislation. And because

States did not give up equal sovereignty with respect

to Article I, it must also be considered in regulation of

commerce.

1. States did not give up their right to equal

sovereignty when they adopted The

Constitution.

Equal sovereignty starts at the Founding.

When the States declared their independence, each

“claimed the powers inherent in sovereignty—in the

words of the Declaration of Independence, the

authority ‘to do all . . . Acts and Things which

Independent States may of right do.’” Murphy v.

NCAA, 138 S. Ct. 1461, 1475 (2018) (quoting

Declaration of Independence ¶ 32). Here, equal

5

sovereignty

sovereignty.

derives

from

that

earlier

total

The Constitution’s ratification did not disrupt

that equal sovereignty—the Constitution regulated

people, not States. Whether Congress would legislate

directly on individuals or States, as it had under the

Articles of Confederation, was “a topic of lively debate

among the Framers.” New York v. U.S., 505 U.S. 141,

163 (1992). The Framers ultimately adopted a

structure, encapsulated in the Supremacy Clause,

under which “Congress would exercise its legislative

authority directly over individuals rather than over

States.” Id. at 165. Oliver Ellsworth articulated that

principle at the Connecticut Convention: “This

Constitution does not attempt to coerce sovereign

bodies, states, in their political capacity.” Id. (quoting

2 Jonathan Elliot, Debates on the Federal

Constitution 197 (2d ed. 1863)). Similarly, Charles

Pinckney explained at the South Carolina Convention

that, under the Constitution, the government would

“operate upon the people, and not upon the states.” Id.

(citing 4 Elliot, supra, at 256).

The Federalist Papers also illuminate the equal

sovereignty doctrine’s underlying logic. James

Madison explained that “a sovereignty over

sovereigns, a government over governments, a

legislation for communities, as contradistinguished

from individuals, as it is a solecism in theory, so in

practice it is subversive of the order and ends of civil

polity.” Id. at 180 (quoting The Federalist No. 20

(James Madison & Alexander Hamilton) (Clinton

Rossiter ed., 1961)). That historical context

6

underscores that Congress, under the Supremacy

Clause, was not intended to exercise “a sovereignty

over sovereigns,” or to be “a government over

governments,” regardless of whether it acts through

prohibition or affirmative command. Id.

In other words, sovereignty precludes hierarchy

through granting unique privileges to one State but

not others. Heeding Madison’s warning, the

Constitution instead “split the atom of sovereignty.”

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838

(1995) (Kennedy, J., concurring). In so doing, it creates

“two orders of government, each with its own direct

relation, its own privity, its own set of mutual rights

and obligations to the people who sustain it and are

governed by it.” Id. And within that structure, the

Constitution enshrines the “idea that our citizens

would have two political capacities, one state and one

federal, each protected from incursion by the other.”

Id. The equal sovereignty doctrine avoids that type of

unconstitutional incursion.

2. Since equal sovereignty applies to the

Reconstruction Amendments, it must also

apply to exercises of commerce power.

Equal sovereignty is at its nadir under the

Reconstruction Amendments—but even there, the

important principle remains. In adopting the

Reconstruction “Amendments, the States . . . expressly

compromised their right to equal sovereignty.” Bellia

& Clark, The International Law Origins of American

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

the Reconstruction Amendments, Congress may

7

enforce their guarantees through “appropriate

legislation,” which can include limiting the

sovereignty of a single State. See U.S. Const., amend.

13, § 2; amend. 14, § 5; amend. 15, § 2. Even where

Congress may act, equal sovereignty retains a

powerful force in defining what legislation is

appropriate. Shelby Cnty., 570 U.S. at 544–45.

This partial abrogation of equal sovereignty in

the context of the Reconstruction Amendments is

what allows Congress to place disparate burdens on

State sovereignty to enforce those provisions of the

Constitution. Before adopting the Reconstruction

Amendments, this Court declined to allow Congress to

coerce a single State into protecting religious freedom

because there “must be, from a constitutional

necessity, a perfect and unchangeable equality among

the states, not indeed in reference to the powers which

they may separately exercise, (for that depends upon

their own municipal constitutions,) but in reference to

those which they separately retain.” Permoli v. Mun.

No. 1 of New Orleans, 44 U.S. (3 How.) 589, 606 (1845).

But the Reconstruction Amendment permit,

and perhaps even encourage, regulations that target

individual States to remedy local evils. See, e.g., City

of Boerne v. Flores, 521 U.S. 507, 532 (1997) (“The

[nationwide] reach and scope of RFRA distinguish it

from other measures passed under Congress’

enforcement power, even in the area of voting

rights.”). In sum, the Reconstruction Amendments

alter the calculus surrounding equal sovereignty when

it comes to laws passed pursuant to those

Amendments.

8

But even in the context of the Reconstruction

Amendments, “the fundamental principle of equal

sovereignty remains highly pertinent” in evaluating

legislation for appropriateness. Id. at 544. To pass

equal sovereignty muster, Congress “must identify

those jurisdictions to be singled out on a basis that

makes sense in light of current conditions.” Shelby

Cnty., 570 U.S. at 553.” Those conditions must take

the form of “local evils” present in the jurisdictions

that bear the burden of discriminatory regulation. Nw.

Austin Mun. Utility Dist. No. One. v. Holder, 557 U.S.

193, 203 (2009) (quoting Katzenbach, 383 U.S. at 328–

29). Where such an evil is present, “any departure

from the fundamental principle of equal sovereignty

requires a showing that a statute’s disparate

geographic coverage is sufficiently related to the

problem it targets.” Id.

That approach shows the equal sovereignty

doctrine’s importance in our Constitutional system.

The Reconstruction Amendments were “specifically

designed to alter the federal-state balance” and allow

the Federal Government to exert power over the

States. Coll. Sav. Bank v. Fla. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 670 (1999). But even

under those amendments the States retain their equal

sovereignty. This resilience, even in an area where

equal sovereignty is partially abrogated, necessarily

implies even greater strength where equal sovereignty

remains unrestricted, the Commerce Power.

Because equal sovereignty retains its force even

when expressly compromised, it is not “so ephemeral

as to dissipate” when Congress acts under its Article I

9

power. Seminole Tribe v. Fla., 517 U.S. 44, 65–66

(1996). The Reconstruction Amendments “alter the

federal state balance,” in which the Commerce Clause

is the status quo. Coll. Sav. Bank, 527 U.S. at 670.

Therefore, the equal sovereignty doctrine must apply

with at least equal force in evaluating legislation

under the commerce power. In adopting the

Constitution, including Article I, States did not forfeit

their equal sovereignty.

II.

THE COURT SHOULD AFFIRM EQUAL

SOVEREIGNTY AS A LIMIT ON THE

COMMERCE POWER.

The D.C. Circuit got it backward. Congress has

more latitude to encroach on equal sovereignty within

the context of the Reconstruction Amendments, not

less. State sovereignty, including equal sovereignty,

traces a direct line to the Founding. States did not

abandon that sovereignty when they joined the union.

They did not lose that sovereignty when they ratified

the Constitution. And they did not forfeit the

protections of that sovereignty elsewhere when

enacting the Reconstruction Amendments. Even if

Congress can abrogate equal sovereignty identically

under the commerce power as it can under the

Reconstruction Amendments, the Clean Air Act’s

waiver provisions fail to satisfy Shelby County’s

framework for appropriateness.

1. Even under Shelby County’s framework,

the waiver provisions cannot stand.

Even under Shelby County Section 209’s

waivers fail. The waiver allows States to regulate

10

greenhouse gases to alleviate climate change. Pet.

App. 211a. But climate change is a global problem. So

the waiver’s “disparate geographic coverage is [not]

sufficiently related to the problem it targets.” Nw.

Austin, 557 U.S. at 203.

States other than California bear the brunt of

climate change, undermining the appropriateness of

allowing only California, out of all States, to set its

own independent policies. The EPA’s own projections

contend that temperature changes are projected to be

greater in the Northeast. See Climate Change and

Social Vulnerability in the United States 12, EPA

(Sept. 2021), https://perma.cc/5VAE-9VLG. The EPA

has also explained that sea-level rise is projected to

affect New York, Houston, and Philadelphia more

than coastal California cities. Id. at 14.

But even though New York is projected to suffer

more harm than California, New York cannot also

adopt regulations like California. See American

Automobile Mfrs. Assn. v. Cahill, 152 F.3d 196, 200 (2d

Cir. 1998) (preempting regulations concerning the sale

of Zero Emission Vehicles); see also Am. Petroleum

Inst. v. Jorling, 710 F. Supp. 421, 431 (N.D.N.Y. 1989)

(finding New York’s fuel regulations must yield to the

EPA’s regulations).

Even if California were uniquely affected,

granting only California a unique authority to waive

federal environmental regulations will not solve the

global climate crisis. The causes of any relevantly

alleged climate change are “global,” not local. City of

New York v. Chevron Corp., 993 F.3d 81, (2d Cir.

11

2021). Greenhouse gases “remain in the atmosphere

long enough to become well mixed, meaning that the

amount that is measured in the atmosphere is roughly

the same all over the world, regardless of the source of

the emissions.” Overview of Greenhouse Gases, U.S.

Environmental

Protection

Agency,

https://perma.cc/5777-TJRN. It is hard to see how a

uniform global distribution of Carbon Dioxide could be

called a “local evil.” Katzenbach, 383 U.S. at 329.

Beyond failing to identify a local evil to be

addressed by the waiver provisions, it is far from clear

that the provisions effectively address any evil at all.

The EPA has never disturbed its finding that

California’s standards “will not meaningfully address

global air pollution problems of the sort associated

with [greenhouse-gas] emissions.” 84 Fed. Reg. at

51,349. In review, “appropriate legislation” must

address a local evil. Climate change is a global evil.

And according to both caselaw and the EPA, the

waiver provisions address neither.

The historical justification for the regulations

also fails to render them appropriate as they do not

reflect “current conditions,” and the present waiver

does not relate to them. Shelby County, 570 U.S. at

553. What’s more, it is not clear that there ever was

sufficient

support

for

a

California-specific

waiver

provision. The Clean Air Act’s legislative history

suggests that many Representatives had concerns

about the specific effects of climate on their State, but

only California got authority under the waiver

provision. See 95 Cong. Rec. 123, 16676 (remarks of

Rep. Maguire) (“My State [New Jersey] wants to be

12

able to do what California is doing, and as I

understand it some other States might also wish to do

so. Why should we not be permitted to do that?”); Id.

at 16677 (remarks of Rep. Carter) (“[W]e have one

State right now, [Colorado], which has specific

problems today over in the city of Denver. Are we

going to tell them they cannot solve their pollution

problems, just as California is solving theirs?”)

Outdated climate science explained that

California’s “geography and prevailing wind

patterns,” coupled with its unusually large number of

vehicles, made smog a more significant problem there

than in other States. 49 Fed. Reg. 18,887, 18890 (May

3, 1984) (citing 113 Cong. Rec. 30,948 (Nov. 2, 1967)).

But the waiver now is not being used to target local

smog. Rather, the waivers are requested to combat the

global ill of an allegedly changing climate. That

changing climate is alleged to be related to carbon

dioxide—notably not a local California issue.

According to the EPA, smog and greenhouse gas

emissions are different. See Greenhouse Gas Versus

Smog

Forming

Emissions,

EPA,

https://perma.cc/8MYX-UV5A. Smog is caused by local

pollutants like nitrogen oxides and volatile organic

compounds, while greenhouse gasses including carbon

dioxide are alleged to contribute to global climate

change. Id. Waivers issued to reduce greenhouse gas

emissions are unrelated to any California-specific

environmental woes and are therefore not

“appropriate legislation.”

The “task of dealing with” a changing climate is

inappropriate to delegate to one State’s idiosyncratic

13

preferences. Ctr. for Biological Diversity v. EPA, 722

F.3d 401, 415 (D.C. Cir. 2013) (Kavanaugh, J.,

concurring). Allowing one State, not uniquely affected

by greenhouse gas emissions, to intrude on other

States’ sovereign regulatory powers while all others

are denied the ability to do so is a quintessential

violation of the equal sovereignty principle.

2. Affirming equal sovereignty will not open

Pandora’s Box.

Concerns about proper respect for the equal

sovereignty doctrine and its effect on jurisprudence

are misplaced. Some radical commentators that object

to Shelby County believe that duly applying that

precedent would have bad policy effects. See Leah

Littman, Inventing Equal Sovereignty, 114 Mich. L.

Rev. 1207, 1239-45 (2016) (listing statutes author

alleges as violating equal sovereignty); see also Shelby

Cnty., 570 U.S. at 588 (Ginsburg, J., dissenting)

(“[E]xtension of the equal sovereignty principle

outside of . . . the admission of new states is capable of

much mischief.”). Those concerns boil down to the

claim that robust protection of equal sovereignty will

lead to the invalidation of many laws.

Respect for the sovereignty of States and the

effects of that respect should not dissuade the court

from affirming Shelby County and equal sovereignty

for two reasons.

First, most of the laws cited as endangered by

equal sovereignty are safe. Equal sovereignty only

requires uniform distribution of “political rights and

obligations,” not burdens and benefits that stem from

14

federal legislation. Stearns v. Minn., 179 U.S. 223, 245

(1900). Most federal enactments do not give special

advantages to one State that deny it to another. Even

rarer is a statute like Section 209 that explicitly gives

only one State authority to regulate contrary to federal

law but denies that right to other States.

Second, “the magnitude of a legal wrong is no

reason to perpetuate it.” McGirt v. Okla., 140 S. Ct.

2452, 2480 (2020).

Many laws that critics refer to as violating

equal sovereignty principles do not actually do so. A

law can have a differential impact between States—

giving one State more resources, for example—

without affecting political sovereignty. In dissent,

Justice

Ginsburg

warned

of

hypothetical

consequences of affirming the equal sovereignty

principle—none of which have come to pass. See

Shelby Cnty., 570 U.S. at 588 (Ginsburg, J.,

dissenting). According to that dissent, considering

equal sovereignty in a context outside a State’s

admission to the union would invalidate many

longstanding laws related to how the government

allocated funding. See id. (citing 26 U.S.C. § 142

(where the EPA could locate green building projects);

42 U.S.C. § 3796bb (allocating rural drug enforcement

assistance funding); 42 U.S.C. § 10136 (restricting

funding to nuclear waste sites)). But federal spending

and distribution of resources are not restrictions on

sovereignty.

Indeed, equal sovereignty plays no role in the

normal and uneven distribution of resources and

15

funding. “The true constitutional equality between the

states only extends to the right of each, under the

Constitution, to have and enjoy the same measure of

local or self-government, and to be admitted to an

equal

participation

in

the

maintenance,

administration, and conduct of the common or

national government.” Case v. Toftus, 39 F. 730, 732

(C.C.D. Or. 1889). The Constitutional “guarantee [is]

of equal sovereignty, not of equal treatment in all

respects” and simple expenditures clearly fall on

unprotected treatment side of the dichotomy. Thomas

Colby, In Defense of the Equal Sovereignty Principle,

65 Duke L. J. 1087, 1149 (2016) (emphasis omitted).

Another concern with the equal sovereignty

doctrine are laws that allow longstanding State

regulations to continue unchanged but disallow States

from prospectively enacting similar statutes. See, e.g.,

42 U.S.C. § 6297 (excluding “regulation concerning the

water use of lavatory or kitchen faucets adopted by the

State of Rhode Island prior to October 24, 1992” from

preemption). But it is not clear that those laws violate

equal sovereignty, either. All states are equally frozen

in their ability to regulate prospectively. And all

States are allowed to continue with their existing

regulations unchanged.

There is no inequality

between the States there.

Enforcing the equal sovereignty principle will

not lead to mass invalidation. It is true that a few

“federal laws impose limits on states’ lawmaking

power while exempting particular states . . . from

federal regulation.” Littman, supra, at 1239–45

(collecting statutes). But even here, it is far from

16

certain that those laws are invalid under equal

sovereignty, which, though “highly pertinent in

assessing subsequent disparate treatment of states,”

is not a categorical “bar on differential treatment”—at

least in the limited sphere of evaluating laws enacted

under the Reconstruction Amendments. Shelby Cnty.,

570 U.S. at 544 (citing Katzenbach, 383 U.S. at 338–

339).

In any case, potential equal sovereignty

violations are not prolific. And if laws violating the

equal sovereignty principle outside the Clean Air Act

exist, they may very well be “like dandelions on an

unmowed lawn—present more by inattention than by

design” and thus not deeply indispensable to

Congress’ ability to legislate. In re Dry Max Pampers

Litig., 724 F.3d 714, 722 (6th Cir. 2013). Whatever the

frequency of laws raising issues of equal sovereignty,

it’s time for this court to do some weed-whacking. See

Disc. Inn, Inc. v. City of Chicago, 803 F.3d 317, 325

(7th Cir. 2015) (“dandelions . . . are weeds”).

III.

THIS IS THE CASE TO AFFIRM EQUAL

SOVEREIGNTY.

The Clean Air Act’s unconstitutional California

favoritism presents the perfect opportunity for this

Court to reaffirm the equal sovereignty doctrine. This

record represents a clear-cut example of an equal

sovereignty violation without a need to extend its

reach. Shelby County, if it is to have any meaning at

all outside the reconstruction amendments, means

that this California-specific waiver fails to present an

appropriate occasion to abrogate equal sovereignty.

17

Further percolation on this issue is unlikely as equal

sovereignty is such a foundational principle under our

Constitution that violations are rare. And because the

D.C. Circuit has exclusive jurisdiction in many Clean

Air Act cases, there cannot be a circuit split on this

issue. The time is right to affirm equal sovereignty.

1. Opportunities to affirm equal sovereignty

are rare.

It is not clear when another equal sovereignty

issue will present itself. In ruling for the respondents,

the D.C. Circuit claimed to be “join[ing] two other

circuits to have considered the issue in rejecting State

Petitioners’ request to extend the equal sovereignty

principle in this fashion.” Ohio v. Env’t Prot. Agency,

98 F.4th 288, 307 (D.C. Cir. 2024) (citing NCAA v.

Governor of N.J., 730 F.3d 208, 239 (3d Cir. 2013),

abrogated on other grounds by Murphy v. NCAA, 584

U.S. 453 (2018) and Mayhew v. Burwell, 772 F.3d 80,

95 (1st Cir. 2014)). But neither case clarifies equal

sovereignty.

Murphy set aside as unconstitutional the

Professional and Amateur Sports Protection Act

(PASPA), 28 U.S.C. § 3701 et seq. See Murphy, 584

U.S. 453. Just as the Clean Air Act restricts all States

but California in environmental regulation, PAPSA

prevented States other than Nevada from regulating

gambling. PAPSA likely violated equal sovereignty—

but neither the Third Circuit nor this Court reached

that issue in preventing its enforcement. And as it is

no longer enforced, there can be no future equal

18

sovereignty

percolation.

challenges

to

generate

further

Mayhew addressed whether the Affordable

Care Act could condition Medicaid funding on meeting

its “maintenance-of-effort” section, which required

States to maintain their existing Medicaid eligibility

standards for children. 772 F.3d at 83. But that is

distinct from an equal sovereignty issue. “Giving

money to one state but not another—or spending

money in one state but not another—is a form of

discrimination, but not one that directly impedes the

regulatory authority or sovereign autonomy of the

state that got the short end of the stick.” Thomas B.

Colby, In Defense of the Equal Sovereignty Principle,

65 Duke L. J. 1087, 1151 (2016).

Unlike here, neither case properly presented

equal sovereignty to the respective circuit courts and

thus did not present as clean an opportunity for this

Court to clarify the doctrine’s scope.

2. This case is an excellent vehicle.

As a vehicle, this case is no lemon. Ohio does

not have jurisdictional issues, nor does it present

alternative grounds for affirmance. It follows the

simple yet wrong proposition that equal sovereignty

cannot

apply

outside

the

Reconstruction

Amendments. See Ohio v. Env’t Prot. Agency, 98 F.4th

at 307.

But that fails to recognize that the

Reconstruction Amendments present the context in

which the equal sovereignty doctrine is weakest. This

important separation of vertical powers principle is

background to the Constitutional structure. Ignoring

19

it in the context of the Commerce power risks

rendering equal sovereignty effectively a dead letter.

Shelby County should not be a ticket good for one ride

only.

A circuit split is likely impossible due to the

D.C. Circuit’s exclusive jurisdiction over all nationally

significant Clean Air Act rules. See 42 U.S.C.

§ 7607(b). Waiting for further percolation is pointless

because the D.C. Circuit has already issued a binding

decision on the issue. This court regularly reviews

splitless decisions interpreting the Clean Air Act. See,

e.g., Michigan v. EPA, 576 U.S. 743 (2015); EPA v.

EME Homer City Generation, L.P., 572 U.S. 489

(2014); Util. Air Regul. Group v. EPA, 573 U.S. 302

(2014); HollyFrontier Cheyenne Refining, LLC v.

Renewable Fuels Ass’n, 594 U.S. 382 (2021). The same

should be done here.

3. The Section 209 waiver threatens to

throw federalism off balance.

The Clean Air Act’s waiver frustrates core

federalism tenets by granting California a monopoly

on regulatory innovation. “It is one of the happy

incidents of the federal system that a single

courageous State may, if its citizens choose, serve as a

laboratory and try novel social and economic

experiments without risk to the rest of the country.”

New State Ice Co. v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting). By allowing

California—and only California—to set its own unique

environmental standards, the waiver effectively

prohibits each of the other States from innovating.

20

Federal law can preempt State laws but it raises

troubling questions when it only preeempts some

States’ laws.

Beyond

injuring

other

States’

equal

sovereignty, the waiver has significant negative

effects. California can wield the authority that only it

possesses as a regulatory cudgel when acting as a

market participant. Because other States may adopt

California’s standards but not their own, California

has unique authority to negotiate with automakers.

When California regulates, they are doing so not just

for themselves but also, potentially, for other States.

And the costs of those expensive California priorities

are felt across the country—including in States that

do not choose to adopt California’s regulations.

California has wielded this unduly enhanced

regulatory leverage to gain an advantage over

automakers and injure Fuel Petitioners. After the

waiver here was set aside (before its subsequent

resurrection), California entered the “California

Framework Agreement” with automakers. C.A. Resp.Int. Br. 4. That framework agreed to adopt the State’s

stringent standards in exchange for certain

concessions. Id. California would wield less predatory

regulatory power without the availability of its

waiver.

And as a result, a favorable decision for Fuel

Petitioners here would “take steps to slow or reduce”

their injury and put money back in their pocket.

Massachusetts v. EPA, 549 U.S. 497, 525 (2007). To

untangle the mess created by the waiver provisions’

21

incursion on equal sovereignty, this Court should also

address the redressability question raised by Fuel

Petitioners.

CONCLUSION

This Court should grant certiorari to reverse

District of Columbia Circuit Court’s judgment.

Respectfully submitted,

BRENNA BIRD

Attorney General

State of Iowa

ERIC WESSAN*

Solicitor General

PATRICK C. VALENCIA

Deputy Solicitor General

eric.wessan@ag.iowa.gov

August 8, 2024

*Counsel of Record

22

ADDITIONAL COUNSEL

RAÚL R. LABRADOR

Attorney General of

Idaho

JOHN FORMELLA

Attorney General of

New Hampshire

DREW WRIGLEY

Attorney General of

North Dakota

MARTY JACKLEY

Attorney General of

South Dakota

JONATHAN SKRMETTI

Attorney General of

Tennessee

JASON S. MIYARES

Attorney General of

Virginia

BRIDGET HILL

Attorney General of

Wyoming