Opposition 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.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

CHLOE H. KOLMAN

ERIC G. HOSTETLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The Clean Air Act (CAA or Act), 42 U.S.C. 7401 et

seq., generally preempts state laws that regulate emissions from new motor vehicles, but the Act directs the

Environmental Protection Agency (EPA) to waive

preemption for California laws under specified conditions. See 42 U.S.C. 7543(a) and (b). The CAA further

provides that, when California has received such a

waiver, each other State may choose either to “adopt

and enforce” California’s emissions standards or to permit application of federal standards. 42 U.S.C. 7507(1).

The question presented is as follows:

Whether the CAA’s preemption scheme violates the

Constitution’s equal-sovereignty principle.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument..................................................................................... 10

A. The decision below is correct ......................................... 11

B. The question presented does not warrant this

Court’s review .................................................................. 18

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

CFPB v. Community. Fin. Servs. Ass’n,

601 U.S. 416 (2024).............................................................. 12

Chiafolo v. Washington, 591 U.S. 578 (2020) ...................... 13

Coyle v. Smith, 221 U.S. 559 (1911) ..................................... 18

Currin v. Wallace, 306 U.S. 1 (1939) ............................. 15, 16

Engine Mfrs. Ass’n v. EPA,

88 F.3d 1075 (D.C. Cir. 1996) ..................................... 2, 3, 17

Franchise Tax Bd. v. Hyatt, 587 U.S. 230 (2019)............... 15

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ................... 15

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

cert. denied, 576 U.S. 1004 (2015) ............................... 10, 19

Motor & Equipment Mfrs. Ass’n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979),

cert. denied, 446 U.S. 952 (1980) ......................................... 3

NCAA v. Governor of N.J., 730 F.3d 208

(3d Cir. 2013), cert. denied, 573 U.S. 931 (2014),

abrogated on other grounds by Murphy v. NCAA,

584 U.S. 453 (2018)........................................................ 10, 19

New York v. United States, 505 U.S. 144 (1992) ................ 15

Ohio v. EPA, 144 S. Ct. 2040 (2024) ..................................... 17

(III)

IV

Cases—Continued:

Page

Secretary of Agric. v. Central Roig Ref. Co.,

338 U.S. 604 (1950).............................................................. 16

Shelby County v. Holder,

570 U.S. 529 (2013)............................................ 7-9, 11, 16-18

Siegel v. Fitzgerald, 596 U.S. 464 (2022) ....................... 11, 12

United States v. Ptasynski, 462 U.S. 74 (1983) .................. 12

United States v. Vaello Madero,

596 U.S. 159 (2022).............................................................. 11

Constitution and statutes:

U.S. Const.:

Art. I ............................................................... 12, 13, 19, 20

§ 3, Cl. 1 ................................................................ 12, 13

§ 8:

Cl. 1:

Spending Clause ............................................. 19

Uniformity Clause .................................... 11, 12

Cl. 3 (Commerce Clause)...................... 9, 10-13, 15

Cl. 4 (Uniformity Clause) .................................... 11

§ 9, Cl. 6 ...................................................................... 12

§ 10, Cl. 3 (Full Faith and Credit Clause) ............... 12

Art. III .............................................................................. 20

Art. IV, § 1........................................................................ 12

Art. V ................................................................................ 13

Art. VI, Cl. 2 (Supremacy Clause) ........................... 10, 15

Amend. XV .............................................................. 9, 16-18

Act of Aug. 11, 1790, ch. 43, 1 Stat. 184-185 ........................ 13

Act of Feb. 9, 1791, ch. 5, 1 Stat. 190 ................................... 13

Act of Apr. 14, 1802, ch. 23, 2 Stat. 152................................ 13

Act of Mar. 8, 1806, ch. 14, § 1, 2 Stat. 354-355 ................... 13

V

Statutes—Continued:

Page

Air Quality Act of 1967, Pub. L. No. 90-148,

§ 208(b), 81 Stat. 501............................................................. 3

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 1

42 U.S.C. 7401(b)(1) .......................................................... 1

42 U.S.C. 7507(1) ................................................... 3, 15, 20

42 U.S.C. 7521(a)(1)........................................................... 2

42 U.S.C. 7543(a) (§ 209(a)) ........................................ 2, 15

42 U.S.C. 7543(b) (§ 209(b)) ................. 2, 3, 5, 6, 11, 15, 17

42 U.S.C. 7543(b)(1) .......................................................... 2

42 U.S.C. 7543(b)(1)(A)-(C) .............................................. 2

42 U.S.C. 7543(b)(1)(B) ................................................... 17

42 U.S.C. 7607(b)(1) .......................................................... 6

Clean Air Act Amendments of 1977,

Pub. L. No. 95-95, 91 Stat. 685:

§ 177(1), 91 Stat. 750 ......................................................... 3

§ 207, 91 Stat. 755 .............................................................. 3

Employee Retirement Income Security Act of 1974,

29 U.S.C. 1001 et seq. .......................................................... 14

29 U.S.C. 1144(a) ............................................................. 14

29 U.S.C. 1144(b)(5) ........................................................ 14

29 U.S.C. 1185b(e)(1) ...................................................... 14

Energy Policy and Conservation Act,

49 U.S.C. 32919(a) ................................................................. 5

Voting Rights Act, 52 U.S.C. 10101 et seq. ........................... 9

15 U.S.C. 2056b(h)(2) ............................................................ 14

16 U.S.C. 823c ........................................................................ 14

16 U.S.C. 824k(k) ................................................................... 13

16 U.S.C. 824p(k) ................................................................... 14

16 U.S.C. 824q(h) ................................................................... 14

16 U.S.C. 824t(f) ..................................................................... 14

42 U.S.C. 2021e(b) ................................................................. 14

VI

Statutes—Continued:

Page

42 U.S.C. 6297(c) .................................................................... 14

49 U.S.C. 31112(c) (2018 & Supp. I 2019) ............................ 14

49 U.S.C. 32511(b) ................................................................. 14

Miscellaneous:

58 Fed. Reg. 4166 (Jan. 13, 1993) ........................................... 4

74 Fed. Reg. 32,744 (July 8, 2009) .......................................... 4

78 Fed. Reg. 2112 (Jan. 9, 2013) ............................................. 4

84 Fed. Reg. 51,310 (Sept. 27, 2019) ...................................... 5

87 Fed. Reg. 14,332 (Mar. 14, 2022) .................................... 4-6

H.R. Rep. No. 90-728, 90th Cong., 1st Sess. (1967)........ 3, 17

In the Supreme Court of the United States

No. 24-13

STATE OF OHIO, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-54a)

is reported at 98 F.4th 288.

JURISDICTION

The judgment of the court of appeals was entered on

April 9, 2024. The petition for a writ of certiorari was

filed on July 5, 2004. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Clean Air Act (CAA or Act),

42 U.S.C. 7401 et seq., “to protect and enhance the quality of the Nation’s air resources so as to promote the

public health and welfare and the productive capacity of

its population,” 42 U.S.C. 7401(b)(1). Under the Act,

each State generally has flexibility to determine how it

(1)

2

will meet air-quality goals. Pet. App. 10a. For “new

motor vehicles,” however, the Act directs the Environmental Protection Agency (EPA) to prescribe nationwide “standards applicable to the emission of any air

pollutant * * * which in [EPA’s] judgment cause[s], or

contribute[s] to, air pollution which may reasonably be

anticipated to endanger public health or welfare.” 42

U.S.C. 7521(a)(1). Section 209(a) of the Act generally

preempts any “State or any political subdivision

thereof” from “adopt[ing] or attempt[ing] to enforce

any standard relating to the control of emissions from

new motor vehicles.” 42 U.S.C. 7543(a).

In turn, Section 209(b) of the Act, 42 U.S.C. 7543(b),

creates an exception to that preemption rule. Section

209(b) generally requires EPA to “waive application of

[Section 209(a)] 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, 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.” 42 U.S.C. 7543(b)(1). Section 209(b) further

specifies, however, that “[n]o 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.” 42 U.S.C. 7543(b)(1)(A)-(C).

California is the only State that regulated vehicle

emissions before March 30, 1966, so it is the only State

that is eligible for a waiver under Section 209(b). Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1079 n.9 (D.C.

3

Cir. 1996). Congress made a waiver available to California because, at the time the CAA was enacted, that

State “was already the ‘lead[er] in the establishment of

standards for regulation of automotive pollutant emissions’ at a time when the federal government had yet to

promulgate any regulations of its own.” Id. at 1079 (citation omitted; brackets in original). Congress also recognized “the unique problems facing California as a result of its climate and topography.” H.R. Rep. No. 728,

90th Cong., 1st Sess. 22 (1967).

Under the original 1967 CAA provision, a waiver of

preemption was available only if California’s standards

were “more stringent than applicable Federal standards.” Air Quality Act of 1967, Pub. L. No. 90-148,

§ 208(b), 81 Stat. 501. In 1977, Congress amended Section 209(b) to “expand California’s flexibility to adopt a

complete program of motor vehicle emissions control.”

Motor & Equipment Mfrs. Ass’n v. EPA, 627 F.2d 1095,

1110-1111 (D.C. Cir. 1979), cert. denied, 446 U.S. 952

(1980); see Clean Air Act Amendments of 1977 (1977

amendments), Pub. L. No. 95-95, § 207, 91 Stat. 755.

The 1977 amendments added language (quoted above)

specifying that, to obtain a waiver, California need only

determine that its standards “will be, in the aggregate,

at least as protective” as federal standards. § 207, 91

Stat. 755. The 1977 amendments also allowed other

States to “adopt and enforce” vehicle-emissions standards that “are identical to the California standards for

which a waiver has been granted for such model year.”

42 U.S.C. 7507(1); see § 177(1), 91 Stat. 750.

Since the CAA’s enactment, EPA has granted 75

Section 209(b) waivers for California’s vehicle-emissions program. Pet. App. 15a. In 1993, EPA granted a

waiver for California’s “ ‘Zero Emission Vehicle’ pro-

4

duction requirement,” which required an annually increasing percentage of vehicles sold in California to produce zero on-road emissions. 58 Fed. Reg. 4166, 4166

(Jan. 13, 1993). And in 2009, EPA granted a waiver for

California’s first set of greenhouse-gas emission standards. 74 Fed. Reg. 32,744, 32,745-32,747 (July 8, 2009).

Despite its substantial regulatory efforts, California

“continue[s] to face significant pollution and climate

challenges.” Pet. App. 16a. California is home to seven

of the Nation’s ten worst areas for ozone pollution and

six of the Nation’s ten worst areas for small particulate

matter. See 87 Fed. Reg. 14,332 14,377 n.469 (Mar. 14,

2022). And the State “is particularly impacted by climate change,” including through “increasing risks from

record-setting fires, heat waves, storm surges, sea-level

rise, water supply shortages and extreme heat.” Id. at

14,365.

2. This case concerns a set of emissions standards,

known as the Advanced Clean Car program, that California adopted in 2012. That program includes a lowemission-vehicle program, which (as relevant here) establishes “standards to regulate [greenhouse-gas] emissions.” 78 Fed. Reg. 2112, 2114 (Jan. 9, 2013). It also

includes a zero-emission-vehicle program, which requires a certain percentage of manufacturers’ fleets to

be zero-emission vehicles. See id. at 2114-2115. In

2013, EPA granted California a waiver for the Advanced Clean Car program, id. at 2112, and that waiver

was not challenged. In response to the waiver, “automobile manufacturers in California began making investments to meet” California’s new emission standards. Pet. App. 18a.

In 2019, “after car manufacturers had adjusted their

fleets to comply with California’s Advanced Clear Car

5

Program,” Pet. App. 18a, EPA withdrew California’s

waiver for the portions of the program that addressed

zero-emission vehicles and set low-emission-vehicle

standards for greenhouse gases, 84 Fed. Reg. 51,310,

51,310 (Sept. 27, 2019). EPA articulated three bases for

the withdrawal. See id. at 51,328-51,341. First, EPA

believed that the waiver conflicted with a then-recent

determination by the National Highway Traffic Safety

Administration (NHTSA) that state greenhouse-gas

regulations like California’s were preempted by the Energy Policy and Conservation Act (EPCA), 49 U.S.C.

32919(a). 84 Fed. Reg. at 51,337-51,338. Second, EPA

asserted that Section 209(b) requires examination of

California’s emission standards in isolation, rather than

“California’s entire program in the aggregate.” Id. at

51,341. Third, EPA determined that California could

not demonstrate that its low-emission-vehicle and zeroemission-vehicle regulations were needed to meet compelling and extraordinary conditions because, in EPA’s

view, California could not show a “particularized nexus”

between greenhouse-gas emissions and California’s airpollution problems. Ibid.

After EPA withdrew the 2013 waiver, automobile

manufacturers representing nearly 30% of U.S. vehicle

sales, including Honda, Ford, Volvo, BMW, and

Volkswagen, entered into independent agreements with

California under which the manufacturers would continue to meet California’s low-emission-vehicle and

zero-emission-vehicle standards. See 87 Fed. Reg. at

14,346 n.115. “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.” Pet. App. 19a.

6

In 2022, EPA reinstated California’s 2013 waiver. 87

Fed. Reg. 14,332. EPA identified three principal

grounds for its reinstatement decision. First, EPA concluded that it had made procedural errors in 2019 when

the agency reconsidered the 2013 waiver. Id. at 14,333.

Second, EPA determined that the 2019 withdrawal decision had rested on a faulty interpretation and application of Section 209(b). Ibid. Third, the agency found

that it had improperly considered NHTSA’s interpretation of EPCA, which NHTSA had since withdrawn in

any event. Ibid.; see Pet. App. 20a.

3. Petitioners, a group of 17 States, sought judicial

review of EPA’s 2022 reinstatement decision in the D.C.

Circuit. See Pet. App. 8a & n.1; 42 U.S.C. 7607(b)(1).1

Petitioners argued that EPCA preempted EPA’s reinstatement of the 2013 waiver, and that Section 209(b)’s

waiver provision violates “a constitutional requirement

that the federal government treat states equally in

terms of their sovereign authority.” Pet. App. 9a. Various States (including California) and localities, automakers, and environmental organizations intervened

in support of EPA. Id. at 20a-21a & nn.4-6.

The court of appeals dismissed petitioners’ EPCA

preemption claim for lack of standing and rejected petitioners’ equal-sovereignty claim on the merits. Pet.

A group of entities that produce or sell liquid fuels and raw materials used to produce those fuels also sought judicial review. See

Pet. App. 9a. Those entities have filed a separate petition for a writ

of certiorari seeking review of the D.C. Circuit’s decision in this

case. See Diamond Alternative Energy, LLC v. EPA, No. 24-7

(filed July 3, 2024). The government is filing a separate brief opposing that petition.

1

7

App. 1a-54a.2 At the outset, the court found that petitioners had standing to raise their equal-sovereignty

claim because, “under the logic of the [Court’s] 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.”

Id. at 40a.

Turning to the merits, the court of appeals held that

the equal-sovereignty principle does not “categorically

prohibit[] Congress from using its Commerce Clause

power in a way that withdraws sovereign authority from

some states but not others.” Pet. App. 38a. The court

acknowledged that this Court’s decision in Shelby

County v. Holder, 570 U.S. 529 (2013), establishes “a

‘fundamental principle of equal sovereignty’ ” under the

Constitution. Pet. App. 41a (quoting Shelby County,

570 U.S. at 544). The court explained that in Shelby

County, this Court had invalidated a Voting Rights Act

(VRA), 52 U.S.C. 10101 et seq., provision that required

certain States but not others to obtain “preclearance”

of voting-law changes, because the preclearance requirement’s “coverage formula” “was founded on ‘decades-old data and eradicated practices.’ ” Pet. App. 41a42a (quoting Shelby County, 570 U.S. at 551). But the

court emphasized that Shelby County “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.’ ” Ibid. (quoting Shelby County,

570 U.S. at 550-551).

Petitioners do not ask this Court to review the court of appeals’

dismissal of their EPCA preemption claim.

2

8

The court of appeals found that petitioners had “forfeited any argument that the waiver here fails Shelby

County’s ‘sufficiently related’ test.” Pet. App. 42a (citation omitted). “Instead,” the court emphasized, petitioners “rel[ied] on Shelby County to argue that the

equal sovereignty principle operates as a categorical

bar on” Congress’s authority to “enact[] Commerce

Clause legislation that leaves some states with more

sovereign authority than others, regardless of Congress’s reasons for doing so.” Ibid. “For several reasons,” the court determined that “Shelby County does

not support [petitioners’] ” argument. Id. at 43a.

The court of appeals first observed that Shelby

County had addressed only “the scope of Congress’s

power to enforce the Fifteenth Amendment ‘by appropriate legislation.’ ” Pet. App. 43a (quoting 570 U.S. at

536). “But unlike the Fifteenth Amendment,” the court

explained, “Congress’s Commerce Clause power is not

limited to ‘appropriate legislation.’ ” Ibid.

The court of appeals next observed that the VRA’s

coverage formula was a “drastic departure from basic

principles of federalism” because “it intruded on states’

power to regulate elections.” Pet. App. 44a (quoting

Shelby County, 570 U.S. at 535). The court explained

that “Section 209(b) is not ‘extraordinary’ in that way”

because “[t]he Constitution places regulation of all matters affecting interstate commerce—including vehicle

emissions—squarely within Congress’s domain.” Ibid.

“[N]o one questions,” the court emphasized, “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.” Id. at 45a. The court thus

found Shelby County inapplicable to an “area[] over

9

which the Constitution grants Congress such comprehensive control.” Ibid.

The court of appeals found petitioners’ argument

“highly counterintuitive,” because it would mean that

“the equal sovereignty principle operates as a categorical bar” in the Commerce Clause context, even though

in the Fifteenth Amendment context it requires only

that “disparate treatment” be “ ‘sufficiently related to

the problem that it targets.’ ” Pet. App. 46a (quoting

Shelby County, 570 U.S. at 550-551). The court rejected

petitioners’ request to “dramatically increase [the]

force” of the equal-sovereignty principle “beyond the

bounds [of] Shelby County.” Id. at 45a.

The court of appeals also rejected petitioners’ reliance on “the equal footing cases” involving “congressional attempts to place limits on new states as a condition of admission to the Union.” Pet. App. 46a. The

court concluded that those decisions “do not directly apply either outside of the admission context or to Article I powers like the Commerce Clause.” Id. at 47a.

The court of appeals also determined that petitioners’ theory was not supported by constitutional “text”

or “history,” or by “law of nations principles.” Pet. App.

48a. As to the text, the court observed that “[t]he Constitution does not contain any textual provision suggesting an equal sovereignty limit on Congress’s” Commerce Clause powers. Ibid. To the contrary, the court

noted, the text “appears to cut against State Petitioners, because the Constitution does impose certain

equality-based limitations on other Article I powers.”

Id. at 48a-49a; see id. at 49a (citing examples). As to

history, the court found that “State Petitioners’ version

of the equal sovereignty principle” lacks a meaningful

Founding-era “pedigree.” Id. at 50a. And as to “law of

10

nations principles,” the court determined that the Supremacy Clause refutes the premise that “the law of nations dictate[s] limits on Congress’s authority in relation to the states.” Id. at 52a-53a.

In rejecting petitioners’ equal-sovereignty claim, the

court of appeals “join[ed] the two other circuits to have

considered” the question whether the equal-sovereignty principle categorically bars Congress from treating different States differently when exercising its Article I powers. Pet. App. 38a (citing NCAA v. Governor

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

573 U.S. 931 (2014), abrogated on other grounds by

Murphy v. NCAA, 584 U.S. 453 (2018); Mayhew v. Burwell, 772 F.3d 80, 95 (1st Cir. 2014), cert. denied, 576

U.S. 1004 (2015)).

ARGUMENT

Petitioners contend (Pet. 10-28) that the equal-sovereignty principle categorically bars Congress from enacting Commerce Clause legislation that leaves some

States with more regulatory authority than others. Petitioners argue that Congress violated that principle

when, instead of preempting all state vehicle-emission

regulations, it waived preemption for California under

specified circumstances and allowed other States to

choose between California’s standards and federal

standards. Those arguments find no support in constitutional text, history, or precedent, and accepting them

would call into question scores of federal statutes. The

court of appeals’ decision rejecting petitioners’ position

accords with the decisions of the two other circuits that

have considered comparable equal-sovereignty challenges. In any event, this case would be a poor vehicle

for considering the scope of the equal-sovereignty doctrine because petitioners forfeited any argument that

11

Section 209(b) is not “sufficiently related to the problem

that it targets.” Shelby County v. Holder, 570 U.S. 529,

551 (2013) (citation omitted). The petition should be denied.

A. The Decision Below Is Correct

In construing the Constitution, this Court looks to

“the constitutional text,” “historical practice,” and

“th[e] Court’s precedents.” United States v. Vaello

Madero, 596 U.S. 159, 164 (2022). Here, those indicia

all point in the same direction: Section 209(b) does not

violate the equal-sovereignty principle.

1. Text. The Commerce Clause empowers Congress

“[t]o regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.”

U.S. Const. Art. I, § 8, Cl. 3. No “textual provision” of

the Constitution “suggest[s] an equal sovereignty limit”

on Congress’s exercise of the Commerce Clause power.

Pet. App. 48a.

In contrast, the Constitution “does impose certain

equality-based limitations on other Article I powers.”

Pet. App. 48a-49a. For instance, it mandates that “all

Duties, Imposts and Excises shall be uniform throughout the United States.” U.S. Const. Art. I, § 8, Cl. 1. It

authorizes Congress “[t]o establish a[] uniform Rule of

Naturalization, and uniform Laws on the subject of

Bankruptcies throughout the United States.” U.S.

Const. Art. I, § 8, Cl. 4; see Siegel v. Fitzgerald, 596 U.S.

464, 478 (2022) (explaining that, although the bankruptcy uniformity requirement does not categorically

preclude the use of geographic limitations in bankruptcy laws, the Clause “does not permit the arbitrary,

disparate treatment of similarly situated debtors based

on geography”). And it prohibits Congress from giving

“[p]reference * * * by any Regulation of Commerce or

12

Revenue to the Ports of one State over those of another.” U.S. Const. Art. I, § 9, Cl. 6. The constitutional

text thus shows that the Framers were “aware of the

dynamic that [petitioners] highlight”— potential unequal treatment of States—yet “did not explicitly limit”

Congress’s Commerce Clause authority through an

equal-sovereignty guarantee. CFPB v. Community

Fin. Servs. Ass’n, 601 U.S. 416, 437 (2024). 3

A different provision of Article I, moreover, “expressly allows Congress to enhance the sovereign authority of some states without granting that authority

equally to all states.” Pet. App. 51a. Specifically, that

provision declares that “[n]o 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 (emphasis

added). Under that provision, Congress may authorize

individual States to take actions—including sovereign

actions like imposing duties and entering compacts—

that other States are barred from taking. That provision further undermines petitioners’ theory of “inviolable equal state sovereignty.” Pet. App. 50a.

Petitioners observe (Pet. 11) that certain other constitutional provisions “treat the States as equals.” But

the provisions they cite—the Full Faith and Credit

Clause, U.S. Const. Art. IV, § 1; a clause addressing the

Even with respect to constitutional provisions (unlike the Commerce Clause) that do impose geographic-uniformity requirements,

the Court has held that “geographically defined classifications” are

permitted, so long as there is not “actual geographic discrimination.” United States v. Ptasynski, 462 U.S. 74, 84-85 (1983) (discussing the Uniformity Clause in Art. I, § 8, Cl. 1); see Siegel, 596 U.S.

at 478 (similar for Bankruptcy Uniformity Clause).

3

13

composition of the Senate, U.S. Const. Art. I, § 3, Cl. 1;

and Article V’s constitutional amendment process, U.S.

Const. Art. V—do not address or constrain Congress’s

Article I powers. The provisions that petitioners cite

thus simply reinforce the inference that the court of appeals drew from the absence of any express equal-sovereignty requirement under the Commerce Clause.

2. History. Founding-era debates about equal sovereignty arose in the context of States’ representation

in Congress, eventually producing the Great Compromise. See Pet. App. 50a-51a. But petitioners have identified no evidence suggesting that the Framers viewed

equal sovereignty as a “fundamental yet unstated limit

on Congress’s authority to legislate.” Id. at 51a.

“‘Long settled and established practice’” since the

Founding confirms that no such categorical equal-sovereignty limit exists. Chiafolo v. Washington, 591 U.S.

578, 592-593 (2020) (citation omitted). For example,

early Congresses authorized certain States to impose

tonnage duties, even though other States were barred

from doing so. See, e.g., Act of Feb. 9, 1791, ch. 5, 1 Stat.

190 (allowing Maryland to impose duty at Port of Baltimore); Act of Aug. 11, 1790, ch. 43, 1 Stat. 184-185 (allowing Georgia, Maryland, and Rhode Island to impose

tonnage duties). Early Congresses also granted only

certain States adjudicative authority over some federal

revenue offenses. See Act of Mar. 8, 1806, ch. 14, § 2

Stat. 354-355. And early Congresses granted special

permission to certain States to make navigational improvements. See Act of Apr. 14, 1802, ch. 23, 2 Stat. 152.

Modern Congresses have continued this trend. For

instance, Congress has authorized Texas to regulate energy transmission, while subjecting all other States to

federal public utility transmission regulation. See 16

14

U.S.C. 824k(k), 824p(k), 824q(h), 824t(f ). Congress has

authorized Hawaii to regulate employee benefit plans,

even though the Employee Retirement Income Security

Act of 1974, 29 U.S.C. 1001 et seq., preempts all other

States’ laws on that topic. See 29 U.S.C. 1144(a) and

(b)(5). Congress has authorized Alaska to regulate certain hydroelectric projects, while requiring all other

States to follow federal regulations for such projects.

See 16 U.S.C. 823c. Congress has allowed South Carolina, Washington, and Nevada to impose their own special limits on the amount of radioactive waste they will

accept for disposal. See 42 U.S.C. 2021e(b).4 And Congress also routinely differentiates between or among

States through longstanding and deep-rooted legislative practices such as the targeting of pilot programs

and appropriations to particular States and the grandfathering of certain States into new federal schemes.

Rather than grounding their theory in congressional

practice, petitioners primarily invoke “[t]he ‘law of nations.’ ” Pet. 12 (citation omitted). They argue (Pet. 1213) that States had equal sovereignty under the law of

nations and did not surrender that equal sovereignty in

the Constitution. That argument is mistaken. “[T]he

law of nations” recognizes a State’s general police powers, which the Constitution does “not abridge[]” in toto.

Other similar provisions abound. See, e.g., 15 U.S.C. 2056b(h)(2)

(exempting certain state laws concerning toy safety); 29 U.S.C.

1185b(e)(1) (exempting certain state laws concerning health-insurance coverage); 42 U.S.C. 6297(c) (exempting Rhode Island, Georgia, New York, and California laws from preemption by certain federal energy-conservation standards); 49 U.S.C. 31112(c) (2018 &

Supp. I 2019) (preserving authority of Wyoming, Ohio, Alaska,

Iowa, Nebraska, Kansas and Oregon to maintain special highwayvehicle rules); 49 U.S.C. 32511(b) (exempting certain state bumpercollision standards for motor vehicles).

4

15

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 70 (1824). But

the Constitution does “subject[] [those powers] to the

superior power of Congress when actually exercised.”

Ibid.; see U.S. Const. Art. VI, Cl. 2. And in the CAA,

Congress exercised its power by generally preempting

state laws regulating motor-vehicle emissions, except

for those of California in some circumstances (and other

States adopting California’s standards). See 42 U.S.C.

7543(a) and (b); 42 U.S.C. 7507(1). In this context, the

law of nations cannot “dictate[] limits on Congress’s authority in relation to the states.” Pet. App. 53a.

Petitioners’ effort (Pet. 16, 20) to analogize equal

sovereignty to implicit constitutional principles like

anti-commandeering and sovereign immunity only underscores the weakness of their position. In those contexts, this Court has relied on concrete historical evidence supporting the specific principles at issue. See

Franchise Tax Bd. v. Hyatt, 587 U.S. 230, 244 (2019)

(documenting substantial “historical evidence that interstate sovereign immunity is preserved in the constitutional design”); New York v. United States, 505 U.S.

144, 163 (1992) (explaining that “the question whether

the Constitution should permit Congress to employ

state governments as regulatory agencies was a lively

topic of debate among the Framers”). By contrast, petitioners’ evidence here supports only the abstract notion that States generally have equal sovereignty—

without speaking to the precise question whether Congress may preempt some States’ laws but not others

when exercising its Commerce Clause power.

3. Precedent. This Court’s Commerce Clause precedent strongly supports the decision below. The Court

has held that “[t]here is no requirement of uniformity in

connection with the commerce power.” Currin v.

16

Wallace, 306 U.S. 1, 14 (1939). Thus, “Congress may

choose the * * * places to which its regulation shall apply,” based on the “relative situations and needs.” Ibid.

And Congress “may devise * * * a national policy with

due regard for the varying and fluctuating interests of

different regions.” Secretary of Agric. v. Central Roig

Ref. Co., 338 U.S. 604, 616 (1950).

Petitioners primarily rely on this Court’s decision in

Shelby County v. Holder, 570 U.S. 529 (2013), Pet. 2325, and on “cases about admitting new States,” Pet. 21.

Those authorities do not support petitioners here.

In Shelby County, the Court held that the VRA’s coverage formula exceeded Congress’s power to enforce

the Fifteenth Amendment. 570 U.S. at 553. Although

the Court observed that there is “a ‘fundamental principle of equal sovereignty’ among the States,” id. at 544

(citation omitted), it recognized that Congress may depart from that principle when doing so is “rational in

both practice and theory,” id. at 550 (citation omitted).

The Court also observed that “Congress may draft another formula based on current conditions,” id. at 557,

so long as its “disparate geographic coverage” is “sufficiently related to the problem that it targets,” id. at 551

(citation omitted).

Shelby County does not advance petitioners’ argument. As an initial matter, the court of appeals found

that petitioners had “forfeited any argument that

[EPA’s] waiver here fails Shelby County’s ‘sufficiently

related’ test.” Pet. App. 42a (citation omitted). Because

of their forfeiture, petitioners failed to develop any record supporting a “sufficiently related” argument before

the agency or the court of appeals. Petitioners seek to

revive that argument here (Pet. 31-32), but “[t]his Court

‘normally decline[s] to entertain’ arguments ‘forfeited’

17

by the parties,” Ohio v. EPA, 144 S. Ct. 2040, 2057

(2024) (citation omitted; second set of brackets in original), and petitioners offer “no persuasive reason to depart from that rule,” ibid.

In any event, Section 209(b)’s “disparate geographic

coverage” is “sufficiently related to the problem that it

targets.” Shelby County, 570 U.S. at 551 (citation omitted). As explained above, Congress waived preemption

for California because that State has long been “the

‘lead[er] in the establishment of’ ” vehicle-emissions

standards, Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,

1079 (D.C. Cir. 1996) (citation omitted), and faces

“unique problems” due to its “climate and topography,”

H.R. Rep. No. 728, 90th Cong., 1st Sess. 22 (1967).

Those problems persist today, as California is particularly affected by climate change. See p. 4, supra. And

unlike the coverage formula in Shelby County, Section

209(b) contains a built-in mechanism to ensure that California can obtain waivers only when justified “based on

current conditions,” 570 U.S. at 557: It makes the

waiver unavailable if EPA finds that California “does

not need [its] State standards to meet compelling and

extraordinary conditions.” 42 U.S.C. 7543(b)(1)(B).

In the court of appeals, petitioners relied on Shelby

County solely “to argue that the equal sovereignty principle operates as a categorical bar on Congress’s Commerce Clause authority.” Pet. App. 42a. But the Court

in Shelby County recognized that Congress can “depart” from “equal sovereignty” so long as it has sufficient justification. 570 U.S. at 542 (citation omitted).

And it would be anomalous to conclude that Congress

has less power to treat States differently when regulating interstate commerce in the CAA than when enforcing the Fifteenth Amendment through the VRA. Unlike

18

Congress’s textually unqualified Commerce Clause authority, Congress’s power to enforce the Fifteenth

Amendment is limited to “appropriate legislation.” U.S.

Const. Amend. XV. And unlike the CAA, which regulates in an area of national concern where Congress

could preempt state law entirely, Pet. App. 45a, the

VRA “authorizes federal intrusion into [a] sensitive

area[] of state and local policymaking,” viz., the regulation of elections, Shelby County, 570 U.S. at 545 (citation omitted).

Petitioners’ reliance on “cases about admitting new

States” (Pet. 21) fares no better. The Court has recognized that, “when a new State is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original

States.” Coyle v. Smith, 221 U.S. 559, 573 (1911). It

follows that Congress may not use its admission authority to “impair[]” a new State’s power in a manner “which

would not be valid and effectual if the subject of congressional legislation after admission.” Ibid. In those

same decisions, however, the Court has observed that

Congress can treat different States differently when

regulating “commerce among the States” in the normal

course. Id. at 574; see ibid. (observing that Congress

could pass a law “touching the sole care and disposition

of the public lands or reservations” in a single State).

And Shelby County itself made clear that the admission

cases do not “operate[] as a bar on differential treatment outside that context.” 570 U.S. at 544.

B. The Question Presented Does Not Warrant This Court’s

Review

Other traditional certiorari criteria likewise counsel

against review. There is no conflict among the circuits

19

on the question presented, and this case would be a poor

vehicle in which to consider that question.

1. Petitioners acknowledge (Pet. 34) that “there is

no circuit split over equal-sovereignty challenges to Article I legislation.” Indeed, the court below “join[ed] the

two other circuits to have considered the issue.” Pet.

App. 38a. The Third Circuit upheld a sports-gambling

law that treated Nevada “more favorably” than other

States, concluding that the equal-sovereignty principle

does not “limit[]” Congress’s ability to legislate under

the Commerce Clause. NCAA v. Governor of N.J., 730

F.3d 208, 238-239 (3d Cir. 2013), cert. denied, 573 U.S.

931 (2014) (emphasis omitted), abrogated on other

grounds by Murphy v. NCAA, 584 U.S. 453 (2018). And

the First Circuit upheld Spending Clause legislation

that arguably treated Maine less favorably than other

States, observing that “[f]ederal laws that have differing impacts on different states are an unremarkable

feature of, rather than an affront to, our federal system.” Mayhew v. Burwell, 772 F.3d 80, 95 (1st Cir.

2014), cert. denied, 576 U.S. 1004 (2015). Both circuits

distinguished Shelby County on the same basic grounds

identified by the court of appeals here. See id. at 94-96;

NCAA, 730 F.3d at 238.

2. This case is an unsuitable vehicle in which to consider whether and how the equal-sovereignty principle

applies to Article I legislation. As noted above, the

court of appeals found that petitioners had “forfeited

any argument that [EPA’s] waiver here fails Shelby

County’s ‘sufficiently related’ test,” and the court therefore did not address that issue. Pet. App. 42a (citation

omitted). That argument is therefore not properly before this Court. To the extent this Court wishes to clarify the proper application of the equal-sovereignty

20

principle to Article I legislation, it should await a case

in which the plaintiff has raised an argument under the

“sufficiently related” test and the court of appeals has

addressed it.

Unlike the prevailing county in Shelby County,

moreover, petitioners do not seek relief from federal

constraints on their regulatory powers. Although petitioners argue (Pet. 29) “that equal sovereignty prohibits

Congress from giving states unequal power to regulate,” petitioners do not seek to exercise their own sovereign authority to regulate vehicle emissions. Instead,

they seek only to disable California from regulating.

See Pet. App. 39a. And if this Court granted review and

petitioners ultimately prevailed on the merits, petitioners would be left with less regulatory flexibility than

they now have, because they would no longer have the

option of adopting California’s standards. 42 U.S.C.

7507(1).

Based on an analogy to “Equal Protection cases,” the

court of appeals held that petitioners had Article III

standing because a ruling in their favor would eliminate

the current disparity in regulatory power between

those States and California. Pet. App. 40a. If this Court

granted certiorari, it would need to confront that novel

standing issue before reaching the merits. But even assuming that the court of appeals’ standing analysis is

correct, petitioners are still in an awkward position to

complain about infringement of their sovereign “power

to regulate.” Pet. 29.

21

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

CHLOE H. KOLMAN

ERIC G. HOSTETLER

Attorneys

SEPTEMBER 2024