Petition for Writ of Certiorari — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefJul 2, 2024

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No.

In the Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL .,

PETITIONERS ,

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

PETITION FOR A WRIT OF CERTIORARI

ERIC D. MCARTHUR

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

MICHAEL BUSCHBACHER

JARED M. K ELSON

BOYDEN GRAY PLLC

801 17th Street NW

Suite 350

Washington, DC 20006

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

ZOE A. JACOBY

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

LESLIE B. ARFFA

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

(Additional counsel on signature page)

QUESTIONS PRESENTED

Section 209(a) of the Clean Air Act generally

preempts States from adopting emission standards for

new motor vehicles. 42 U.S.C. § 7543(a). But under

Section 209(b) of that Act, EPA may grant California—

and only California—a waiver from federal preemption

to set its own vehicle-emission standards. Before

granting a preemption waiver, EPA must find that California “need[s]” its own emission standards “to meet

compelling and extraordinary conditions.”

Id.

§ 7543(b)(1)(B).

In 2022, EPA granted California a waiver to set its

own standards for greenhouse-gas emissions and to

adopt a zero-emission-vehicle mandate, both expressly

intended to address global climate change by reducing

California vehicles’ consumption of liquid fuel. Fuel

producers challenged EPA’s waiver as contrary to the

text of Section 209(b). The D.C. Circuit rejected the

challenge without reaching the merits, concluding that

fuel producers’ injuries were not redressable because

they had not established that vacating EPA’s waiver

would have any effect on automakers.

The questions presented are:

1. Whether a party may establish the redressability

component of Article III standing by relying on the

coercive and predictable effects of regulation on third

parties.

2. Whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zeroemission-vehicle mandate is unlawful.

(I)

PARTIES TO THE PROCEEDING

Petitioners are Diamond Alternative Energy, LLC,

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.

Respondents are the Environmental Protection

Agency and Michael S. Regan, in his official capacity as

Administrator of the Environmental Protection

Agency.

Other petitioners in the court of appeals were the

States of Ohio, Alabama, Arkansas, Georgia, Indiana,

Kansas, Kentucky, Louisiana, Mississippi, Missouri,

Montana, Nebraska, Oklahoma, South Carolina, Texas,

Utah, and West Virginia.

Intervenors on behalf of respondents in the court of

appeals were Ford Motor Company, Volkswagen

Group of America, Inc., American Honda Motor Co.,

Inc., BMW of North America, LLC, Volvo Car USA

LLC, New York Power Authority, National Grid USA,

Calpine Corporation, Advanced Energy Economy,

Power Companies Climate Coalition, National Coalition for Advanced Transportation, State of Washington, District of Columbia, State of New Jersey, State

of Maine, State of Hawaii, State of Illinois, State of

(II)

III

Maryland, State of Colorado, State of Nevada, State of

New York, State of Connecticut, State of Vermont,

State of Rhode Island, State of North Carolina, State

of California, State of New Mexico, State of Minnesota,

State of Delaware, State of Oregon, City of New York,

Commonwealth of Pennsylvania, Commonwealth of

Massachusetts, City of Los Angeles, Clean Air Council,

Natural Resources Defense Council, Public Citizen,

Center for Biological Diversity, Environmental Defense Fund, Sierra Club, National Parks Conservation

Association, Union of Concerned Scientists, Conservation Law Foundation, and Environmental Law and Policy Center.

RULE 29.6 DISCLOSURE STATEMENT

Petitioner Diamond Alternative Energy, LLC, is a

Delaware limited liability company that manufactures

biomass-derived liquid fuels. It is a wholly owned direct subsidiary of Valero Energy Corporation, a Delaware corporation whose common stock is publicly

traded on the New York Stock Exchange under the

ticker symbol VLO.

Petitioner American Fuel & Petrochemical Manufacturers is a national trade association that represents

American refining and petrochemical companies. The

Association has no parent corporation, and no publicly

held corporation has a 10% or greater ownership in it.

Petitioner Clean Fuels Development Coalition is a

business league organization established in a manner

consistent with Section 501(c)(6) of the Internal Revenue Code. Established in 1988, the Coalition works

with auto, agriculture, and biofuel interests in support

of a broad range of energy and environmental programs. It has no parent companies, and no publicly

held company has a 10% or greater ownership interest

in the Coalition.

Petitioner Domestic Energy Producers Alliance is a

non-profit, nonstock corporation organized under the

laws of the State of Oklahoma. The Alliance has no parent corporation, and no publicly held company owns

10% or more of its stock.

Petitioner Energy Marketers of America is a federation of 47 state and regional trade associations representing energy marketers throughout the United

States. It is incorporated under the laws of the Commonwealth of Virginia, has no parent corporation, and

(IV)

no publicly held corporation has a 10% or greater ownership in it.

Petitioner ICM, Inc. is a Kansas corporation that is

a global leader in developing biorefining capabilities,

especially for the production of ethanol. It is a wholly

owned subsidiary of ICM Holdings, Inc., and no publicly held company has a 10% or greater ownership interest in ICM Holdings, Inc.

Petitioner Illinois Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner Iowa Soybean Association is a non-profit

trade association within the meaning of D.C. Circuit

Rule 26.1(b). Its members are soybean farmers and

supporters of the agriculture and soybean industries.

It operates for the purpose of promoting the general

commercial, legislative, and other common interests of

its members. The Iowa Soybean Association does not

have a parent company, it has no privately or publicly

held ownership interests, and no publicly held company

has ownership interest in it.

Petitioner Kansas Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner Michigan Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner the Minnesota Soybean Growers Association is a non-profit trade association. Its members are

soybean farmers, their supporters, and members of

soybean industries. It operates for the purpose of promoting the general commercial, legislative, and other

common interests of its members. The Minnesota Soybean Growers Association is a not-for-profit corporation that is not a subsidiary of any corporation and that

does not have any stock which can be owned by a publicly held corporation.

Petitioner Missouri Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner National Association of Convenience

Stores is an international trade association that represents both the convenience and fuel retailing industries

with more than 1,300 retail and 1,600 supplier company

members. The United States convenience industry has

more than 152,000 stores across the country, employs

2.74 million people, and had more than $859 billion in

sales in 2023, of which more than $532 billion were fuel

sales. The Association has no parent corporation, and

no publicly held corporation has a 10% or greater ownership interest in it.

Petitioner the South Dakota Soybean Association is

a non-profit trade association. Its members are soybean farmers, their supporters and members of soybean industries. It operates for the purpose of promoting the general commercial, legislative, and other common interests of its members. The South Dakota Soybean Association is a not-for-profit corporation, is not

a subsidiary of any corporation, and does not have any

stock which can be owned by a publicly held corporation.

VII

Petitioner Valero Renewable Fuels Company, LLC,

a Texas limited liability company that manufactures

ethanol, is a wholly owned direct subsidiary of Valero

Energy Corporation.

RELATED PROCEEDINGS

United States Court of Appeals (D.C. Cir.):

Ohio v. EPA, No. 22-1081 (Apr. 9, 2024)

Iowa Soybean Association v. EPA, No. 22-1083

(Apr. 9, 2024)

American Fuel & Petrochemical Manufacturers v.

EPA, No. 22-1084 (Apr. 9, 2024)

Clean Fuels Development Coalition v. EPA,

No. 22-1085 (Apr. 9, 2024)

(VIII)

TABLE OF CONTENTS

Page

Introduction ............................................................................1

Opinions below ........................................................................5

Jurisdiction ..............................................................................5

Statutory provisions involved ...............................................5

Statement of the case.............................................................5

A. Legal background........................................................5

B. Regulatory background ..............................................7

C. Proceedings below .....................................................10

Reasons for granting the petition ......................................13

I. The D.C. Circuit’s standing decision warrants this

Court’s review .................................................................15

A. The decision below is wrong ....................................15

B. The decision below creates a conflict among the

courts of appeals ........................................................21

C. The question presented is important and warrants

review in this case......................................................24

II. This Court should also reach the merits and vacate

the waiver .........................................................................26

A. EPA’s decision is wrong ...........................................27

1. Global climate change is not an “extraordinary”

California condition within the meaning of

Section 209 ............................................................28

(IX)

2. California does not “need” its own emission

standards to “meet” climate-change

conditions ..............................................................30

3. EPA’s whole-program approach is wrong........32

4. Clear-statement rules favor petitioners’

reading ...................................................................33

B. The question presented is important, is implicated

in the States’ petition, and repeatedly evades

review ..........................................................................35

Conclusion .............................................................................37

Appendix A - Opinion of the court of appeals

(Apr. 9, 2024)....................................................................1a

Appendix B - Decision of the Environmental Protection

Agency (Mar. 14, 2022)................................................ 50a

Appendix C - Relevant statutory provisions ............... 286a

TABLE OF AUTHORITIES

Page(s)

Cases:

Bennett v. Spear,

520 U.S. 154 (1997) ......................................... 4, 16, 18

Bolln v. Nebraska,

176 U.S. 83 (1900) ..................................................... 33

California v. Texas,

593 U.S. 659 (2021) ................................................... 17

Chamber of Commerce v. EPA,

642 F.3d 192 (D.C. Cir. 2011) .................................... 8

Corner Post, Inc. v. Board of Governors of the

Fed. Rsrv. Sys.,

603 U.S. __ (2024) .................................................... 16

Davis v. FEC,

554 U.S. 724 (2008) ................................................... 21

Department of Commerce v. New York,

588 U.S. 752 (2019) ......................................... 4, 16, 17

Energy Future Coalition v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ............4, 12, 16, 23, 24

FDA v. Alliance for Hippocratic Medicine,

602 U.S. __ (2024) ............................................... 16, 17

Ford Motor Co. v. EPA,

606 F.2d 1293 (D.C. Cir. 1979) ................................ 29

General Land Office v. Biden,

71 F.4th 264 (5th Cir. 2023) ..................................... 22

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................................... 34

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................. 15, 16

(XI)

XII

Cases—Continued:

Massachusetts v. EPA,

549 U.S. 497 (2007) ....................................... 15, 17, 18

Motor & Equip. Mfrs. Ass’n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979) .................................. 6

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. New

York State Dep’t of Env’t Conservation,

17 F.3d 521 (2d Cir. 1994) ........................................ 27

Murthy v. Missouri,

603 U.S. __ (2024) ............................................... 18, 19

NRDC v. NHTSA,

894 F.3d 95 (2d Cir. 2018) ........................................ 22

Skyline Wesleyan Church v. California Dep’t of

Managed Health Care,

968 F.3d 738 (9th Cir. 2020) .................................... 23

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Eng’rs,

531 U.S. 159 (2001) ................................................... 34

South Carolina v. Katzenbach,

383 U.S. 301 (1964) ................................................... 34

United States v. Sanchez-Gomez,

584 U.S. 381 (2018) ................................................... 26

United States v. Washington,

596 U.S. 832 (2022) ................................................... 26

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................... 34

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ................................................... 15

West Virginia v. EPA,

597 U.S. 697 (2022) ......................................... 3, 26, 34

XIII

Cases—Continued:

Wieland v. Department of Health & Human

Services,

793 F.3d 949 (8th Cir. 2015) .................................... 23

Statutes:

28 U.S.C. § 1254(1) ........................................................... 5

42 U.S.C.

§ 7408 ............................................................................ 7

§ 7409 ............................................................................ 7

§ 7410 ........................................................................ 1, 6

§ 7507 ............................................................ 7, 28, 286a

§ 7543(a) ......................................... I, 1, 6, 27, 29, 287a

§ 7543(b) ......................... I, 1, 6, 7, 27, 28, 32, 33, 287a

45 U.S.C. § 7521(a)(2) .................................................... 32

Regulations:

38 Fed. Reg. 10,235 (Apr. 26, 1973) ............................... 7

49 Fed. Reg. 18,887 (May 3, 1984) ................................. 6

59 Fed. Reg. 48,557 (Sept. 22, 1994) .............................. 7

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

74 Fed. Reg. 32,755 (July 8, 2009) ................................. 8

78 Fed. Reg. 2,112 (Jan. 9, 2013) ............................... 8, 9

84 Fed. Reg. 51,310 (Sept. 27, 2019) ................. 9, 29, 30,

31, 32, 33

86 Fed. Reg. 7,037 (Jan. 25, 2021) ............................... 10

86 Fed. Reg. 74,434 (Dec. 30, 2021) ............................. 35

87 Fed. Reg. 14,332 (Mar. 14, 2022) .................. 5, 10, 32

87 Fed. Reg. 25,710 (May 2, 2022) ............................... 35

XIV

Other authorities:

113 Cong. Rec. 30,948 (Nov. 2, 1967) ............................. 6

Advanced Clean Cars Waiver Request (May

2012), https://www.regulations.gov/document/EPA-HQ-OAR-2021-0257-0006 ................... 9

American Heritage Dictionary (1st ed. 1969) .......... 31

California Air Resources Board, States that Have

Adopted California’s Vehicle Regulations

(June 2024)................................................................. 10

California Air Resources Board, Public Hearing to

Consider the Proposed Advanced Clean Cars II

Regulations (Apr. 12, 2022) .................................... 36

Coral Davenport et al., California to Ban the Sale

of New Gasoline Cars, N.Y. Times (Aug. 24,

2022) ........................................................................... 35

H.R. Rep. No. 90-728 (1967) ..................................... 6, 29

Webster’s New International Dictionary (3d ed.

1961) ..................................................................... 28, 31

In the Supreme Court of the United States

No.

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL .,

PETITIONERS ,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

Section 209 of the Clean Air Act is a remarkable provision. It starts off modestly enough: because both

motor vehicles and air pollution often cross state borders, Section 209(a) entrusts EPA to enact nationwide

vehicle-emission standards and preempts States from

adopting their own. 42 U.S.C. § 7543(a); see id. § 7410.

But then Section 209(b) does something unusual: it

allows EPA to grant a waiver from preemption to a

single State—California—to enforce its own vehicleemission standards. To escape preemption, California

must demonstrate to EPA that it “need[s]” its own

emission standards “to meet compelling and extraordinary conditions.” Id. § 7543(b)(1)(B). Other States

(1)

may not establish their own standards, but they may

elect to follow EPA’s or California’s.

As a concurrent challenge of 17 States explains,

there are serious constitutional concerns with a statute

that allows only California to act as a junior-varsity

EPA. Still, for its first several decades, Section 209

worked more or less as intended. EPA granted

preemption waivers for California to tackle local problems like smog in the Los Angeles basin, where the pollution was both generated by and felt by Californians.

But all sensibility stopped in 2009, when California began claiming that Section 209 authorized it to set standards to curb greenhouse gases in an effort to tackle

global climate change. For the next decade, EPA flipflopped under each new Presidential Administration

about whether it could grant California such a waiver.

In this latest order, EPA has again taken the position

that Section 209 permits California to operate as a

quasi-federal regulator on global climate change.

That vaunted role cannot be squared with the text,

structure, or purpose of Section 209. First, climate

change is not an “extraordinary” condition within California, and thus within the meaning of Section

209(b)(1)(B), because it is a global issue that is not localized to California. Second, California does not

“need” its own emission standards to “meet” global

climate-change conditions, as its standards would have

no discernable effect on climate-change-related conditions in the State (or anywhere else). Global climate

change is, in short, not the kind of California-specific

condition that Section 209(b) carves out from preemption.

The question whether California may set greenhouse-gas emission standards for itself and other

States is undeniably major. California has mandated

100% electric vehicles by 2036, and is forcing electrification of the country’s vehicle fleet. And the Executive

Branch intends exactly that. The National Highway

Traffic Safety Administration and EPA have set their

own fuel-economy and emission standards that impose

de facto electric-vehicle mandates in violation of their

governing statutes. The companion challenges to those

rules are awaiting decision by the D.C. Circuit. See

Texas v. EPA, No. 22-1031 (filed Feb. 28, 2022); Natural Res. Def. Council v. NHTSA, No. 22-1080 (filed

May 11, 2022). But by granting California the authority to outstrip even those mandates, EPA has put in

place a backstop to the unlawful federal rules. Simply

put, the waiver and authority claimed here are key

parts of a coordinated agency strategy to convert the

Nation from liquid-fuel-powered vehicles to electric vehicles. If that strategy seems familiar, it should. See

West Virginia v. EPA, 597 U.S. 697 (2022).

Despite the issue’s importance, the D.C. Circuit has

avoided the merits of EPA’s interpretation for over 15

years. It has met each challenge to EPA’s waiver determination with a different jurisdictional barrier.

This time, the D.C. Circuit dodged the issue under the

guise of redressability. Petitioners are entities and associations of entities that produce or sell liquid fuels

and the raw materials used to make them. Facing a

regulation designed to reduce the demand for their

products, petitioners’ standing is self-evident. They

also introduced unrebutted standing declarations

about how California’s standards will increase the sales

of electric vehicles and reduce the consumption of liquid fuel—which, after all, is their express purpose. See

App., infra, 19a-20a. But in a per curiam opinion, the

D.C. Circuit held that petitioners had not established

redressability because they had not submitted evidence, such as affidavits from third-party automakers,

showing precisely how automakers would adjust their

production or prices during the four years of the

waiver. Id. at 30a.

The D.C. Circuit’s standing decision is wrong and

warrants this Court’s review. Under precedents of this

Court and even the D.C. Circuit, “remov[ing] a regulatory hurdle” to the sale of a challenger’s product suffices to establish redressability. Energy Future Coalition v. EPA, 793 F.3d 141, 144 (D.C. Cir. 2015) (Kavanaugh, J.); see Bennett v. Spear, 520 U.S. 154, 169

(1997). At a minimum, challengers to governmental action can rely on the “predictable effect” of regulation

on third parties to establish causation and redressability. Department of Commerce v. New York, 588 U.S.

752, 768 (2019). Where, as here, the entire point of the

challenged regulation is to reduce consumption of the

plaintiffs’ products, a decision vacating the regulation

would obviously provide redress. Other courts of appeals applying these principles have thus found standing without relying on the sort of affidavits that the

court below demanded. Left uncorrected, the decision

below will impose an often insurmountable barrier to

challenges in the court of appeals that is the primary

home for administrative litigation.

This Court should also reach the merits of petitioners’ challenge, and finally decide whether EPA has the

authority to grant California a preemption waiver to

address global climate change. The challenged California standards are in effect only through model year

2025, so merely correcting the D.C. Circuit’s standing

mistake may mean that no court considers the merits

before the waiver expires. And granting review of both

questions presented is also the most reasonable way to

resolve the States’ concurrent challenge to the decision

below. The States challenged EPA’s waiver as unconstitutional because Section 209(b) violates the principle

of equal sovereignty, and the court below rejected that

constitutional argument on the merits. App., infra,

49a. Granting review of the merits would allow the

Court to consider whether EPA’s waiver is statutorily

authorized before needing to reach the States’ constitutional questions, raised in a separate petition. The

Court should grant both this petition and the States’,

and reverse.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1a-49a) is reported at 98 F.4th 288. The EPA order

under review (App., infra, 50a-285a) is available at

87 Fed. Reg. 14,332.

JURISDICTION

The court of appeals entered judgment on April 9,

2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in the

appendix to this petition. App., infra, 286a-290a.

STATEMENT OF THE CASE

A. Legal Background

Title II of the Clean Air Act makes EPA the Nation’s primary regulator of motor-vehicle emissions.

42 U.S.C. § 7410. To effectuate a (mostly) uniform federal emissions regime, Section 209(a) of the Act prohibits States from “adopt[ing] or attempt[ing] to enforce

any standard relating to the control of emissions from

new motor vehicles.” Id. § 7543(a). This preemption

provision prevents “an anarchic patchwork of federal

and state regulatory programs.” Motor & Equip.

Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1109 (D.C. Cir.

1979).

Congress allowed only one exception to Section

209(a)’s broad preemption provision: Section 209(b),

which authorizes EPA to “waive” preemption for California, under limited circumstances.

42 U.S.C.

§ 7543(b). Congress granted California this special

status because of the State’s “unique problems” with

smog and other local issues caused by criteria pollutants like ozone and particulate matter. H.R. Rep. No.

90-728, at 22 (1967). California’s atypical “geography

and prevailing wind patterns,” together with its unusually large number of vehicles, made smog a more persistent problem there than elsewhere. 49 Fed. Reg.

18,887, 18,890 (May 3, 1984) (citing 113 Cong. Rec.

30,948 (Nov. 2, 1967)).

Congress limited California’s ability to separately

regulate emissions in several ways. California may apply for a waiver only if it “determines that [its own]

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). EPA must

then evaluate the application and deny a waiver if,

among other things, it finds that California’s protectiveness determination is “arbitrary and capricious,”

id. § 7543(b)(1)(A); or if California “does not need such

State standards to meet compelling and extraordinary

conditions,” id. § 7543(b)(1)(B).

In 1977, Congress amended the Clean Air Act to allow any other State to “adopt and enforce” California

standards “for which a waiver has been granted,” so

long as the State has a federally approved plan to attain the air-quality standards EPA sets for criteria pollutants. 42 U.S.C. §§ 7507, 7408(a), 7409. The upshot

of this unusual preemption system is that EPA sets nationwide emission standards; California may in limited

circumstances set more stringent ones in California;

and other States may either apply EPA’s standards or

adopt California’s, but may not set their own.

B. Regulatory Background

1. For decades, California used its waiver authority as Congress intended, to set emission standards to

combat local air-quality problems like smog. See, e.g.,

38 Fed. Reg. 10,235, 10,318 (Apr. 26, 1973); 59 Fed.

Reg. 48,557, 48,626 (Sept. 22, 1994). In recent years,

however, California has sought to transform this exception for tackling localized pollution into a tool for

addressing global climate change through forced electrification of its vehicle fleet.

That effort initially failed. In 2008, EPA denied California’s first application for a waiver allowing it to set

emission standards to address climate change. EPA

determined that Section 209(b)’s preemption waiver

permitted California to enact standards only to address “local and regional” pollution where the “causal

factors are local to California”—which obviously did

not include global climate change. 73 Fed. Reg. 12,156,

12,163 (Mar. 6, 2008).

The day after President Obama took office, California sought reconsideration of EPA’s denial of its waiver

application for greenhouse-gas standards.

EPA

granted reconsideration, reversed itself, and issued the

waiver. 74 Fed. Reg. 32,755, 32,783 (July 8, 2009). A

number of affected parties challenged EPA’s decision,

but the D.C. Circuit held that the case was moot because California had “deemed” compliance with federal

standards to satisfy the State’s standards as well.

Chamber of Commerce v. EPA, 642 F.3d 192, 206 (D.C.

Cir. 2011).

2. In 2012, California applied for a new waiver to

allow it to impose even more standards aimed at curbing greenhouse-gas emissions. This case concerns that

2012 waiver application and the “Advanced Clean Car”

standards that it imposes. Those standards govern all

new passenger cars, light-duty trucks, and mediumduty vehicles sold in California for model years 2015

through 2025.

As relevant here, the Advanced Clean Car standards have two key features that require a preemption

waiver. First, California’s greenhouse-gas emission

standards limit carbon-dioxide emissions and thus effectively force manufacturers to produce and sell fewer

cars that run on liquid fuel. 78 Fed. Reg. 2,112, 2,137

(Jan. 9, 2013). Second, the California standards include

a “zero-emission vehicle” mandate, which requires

each car manufacturer to produce and deliver for sale

an increasing percentage of electric or fuel-cell vehicles (or purchase regulatory “credits” instead). Cal.

Regs. tit. 13, § 1962.2(b). By model year 2025, the required percentage of zero-emission vehicles will rise to

around 22%. Ibid. California explained that the mandated zero-emission vehicles “can dramatically reduce

petroleum consumption . . . compared to conventional

technologies.” Advanced Clean Cars Waiver Request

7-9 (May 2012), https://www.regulations.gov/document/EPA-HQ-OAR-2021-0257-0006.

3. In 2013, EPA granted a waiver for California’s

Advanced Clean Cars program. EPA concluded that

California’s standards met Section 209(b)’s criteria—

including that they were “needed to meet compelling

and extraordinary conditions”—because the threat of

global climate change was itself “compelling.” 78 Fed.

Reg. at 2,130. Notably, EPA credited California’s finding that the cost of its regulations would be “more than

offset by consumer fuel savings over the life of the vehicles.” 78 Fed. Reg. at 2,138. At the time, however,

California had kept in place its “deemed to comply”

provision, and so potential challengers were stuck with

the unfavorable D.C. Circuit standing precedent. California maintained that provision until 2018, when EPA

set less stringent standards during the Trump Administration.

4. After that change in Administration, EPA reverted to its original approach to Section 209. In a 2019

joint rulemaking with NHTSA, EPA rescinded the

2013 preemption waiver for California’s greenhousegas standards and zero-emission-vehicle mandate,

again reasoning that climate change is not the kind of

“peculiar,” California-specific condition covered by

Section 209(b). 84 Fed. Reg. 51,310, 51,328, 51,339

(Sept. 27, 2019). In addition, EPA found that California did not “need” its standards to “meet” climatechange conditions because California’s standards

would likely result in “no change in temperatures or

physical impacts resulting from anthropogenic climate

change in California.” Id. at 51,341 (emphasis added).

C. Proceedings Below

1. On his first day in office, President Biden signed

Executive Order 13,990, directing EPA to consider

“suspending, revising, or rescinding” the 2019 withdrawal of California’s 2013 waiver. 86 Fed. Reg. 7,037

(Jan. 25, 2021). EPA dutifully followed the President’s

lead and reinstated California’s waiver. App., infra,

57a.

In granting the waiver, EPA flipped back to its 2013

understanding of Section 209(b). It concluded that the

waiver was justified in part because California needs

its emission program as a whole—not the particular

Advanced Clean Cars program that was the subject of

the waiver—to address its criteria-pollution problems.

Id. at 158a-166a. EPA also found that California

needed its emission standards and zero-emission vehicle mandate because the effects of global climate

change in California are “extreme,” and because there

is a “logical link” between local air-pollution problems

and greenhouse-gas emissions. Id. at 207a, 215a.

To date, 17 States and the District of Columbia have

adopted California’s greenhouse-gas standards, its

zero-emission-vehicle mandate, or both. CARB, States

that Have Adopted California’s Vehicle Regulations

(June 2024), https://ww2.arb.ca.gov/our-work/programs/

advanced-clean-cars-program/states-have-adoptedcalifornias-vehicle-regulations. Together with California, those jurisdictions account for more than 40% of

the Nation’s new vehicle market. 87 Fed. Reg. 14,332,

14,358 (Mar. 14, 2022).

2. Petitioners are entities that produce or sell liquid

fuels and the raw materials used to produce them,

along with associations whose members include such

entities. They challenged EPA’s waiver reinstatement

in the D.C. Circuit. App., infra, 2a. Petitioners filed

detailed standing declarations, explaining that the reinstatement of California’s standards would depress

demand for fuel, injuring them financially. Id. at 19a20a. The State of Ohio, along with a coalition of 16

other States, separately challenged the reinstatement

on the ground that California’s unique exemption from

nationwide preemption violates the constitutional

equal-sovereignty principle.

In defending the waiver reinstatement, EPA did not

contest petitioners’ Article III standing. On the merits, it primarily relied on what it refers to as its “whole

program” approach. Under this reading of the Clean

Air Act, Section 209(b)(1)(B) is satisfied if “California

needs its program as a whole to meet compelling and

extraordinary conditions.” C.A. EPA Br. 84 (emphasis

added). In other words, EPA argued that California

can tack on any emission standards it likes to its emissions “program,” “so long as” the State’s criteriapollutant problems “persist.” Id. at 66.

Unlike EPA, California and other state and local intervenors challenged petitioners’ standing. They contended that automakers were independently increasing electric-vehicle production in response to consumer

demand, and that petitioners had not “established any

probability that manufacturers would change course if

EPA’s decision were vacated.”

C.A. California

Br. 13-15. But their own intervention motion attached

declarations asserting that “additional gasoline-fueled

vehicles would be sold during these model years” if

EPA’s waiver were overturned. C.A. States’ Int. Mot.,

Scheehle Decl. ¶¶ 17-18. In reply, petitioners further

explained that they had standing because vacating the

waiver would remove a “direct regulatory impediment”

to their products’ use. C.A. Reply 4 (citing Energy Future Coal., 793 F.3d at 144). They also noted that California itself had told EPA that the waiver was “critical

for incentivizing production and deployment of zeroemission vehicles.” Id. (quoting C.A. J.A. 237).

At oral argument, however, counsel for the state

and local intervenors began making similar arguments

under the rubric of mootness. California contended

that automakers could no longer change their production and sales plans for vehicles covered by California’s

waiver—that is, through model year 2025. In response,

petitioners moved to file a supplemental brief explaining why their petitions were not moot, along with supplemental declarations from individuals experienced in

vehicle-emissions compliance, who explained that “automobile manufacturers could and likely would change

their production, pricing, and/or distribution plans for

Model Year 2025 as late as December 2025, but at a

minimum well into 2025.” C.A. Pet. Standing Addendum, Kreucher Decl. ¶ 5.

3. The court of appeals held that petitioners lack

Article III standing to challenge EPA’s waiver. App.,

infra, 30a. Although the court declined to “definitively

decide” whether petitioners had established injury and

causation, it did not question either showing. Id. at

21a. After all, petitioners had explained that “by requiring vehicle manufacturers to sell vehicles that use

less or no liquid fuel, California’s . . . requirements depress the demand for liquid fuel.” Id. at 19a.

Instead, the court of appeals concluded that petitioners had failed to show that their injuries would be

redressed if EPA’s decision were set aside. App., infra, 30a. The court reasoned that petitioners’ claims

were not “mooted by the passage of time,” but rather

that petitioners had lacked standing from the start. Id.

at 25a. The court faulted petitioners for “fail[ing] to

point to any evidence affirmatively demonstrating that

vacatur of the waiver would be substantially likely to”

prompt automakers to produce fewer electric vehicles

or alter their prices so that fewer would be sold. Id. at

23a. According to the court, petitioners had thus failed

to establish that—even if the waiver had been vacated

at the moment it was reinstated in 2022—automakers

would have changed any production or prices before

the end of model year 2025. Id. at 23a-24a.

The court of appeals also declined to consider petitioners’ supplemental declarations. App., infra, 30a.

The court reasoned that there was no “good cause” to

supplement the record because petitioners could not

“have reasonably believed” that “their standing was

‘self-evident’ from the record” when they filed their

opening brief. Id. at 31a.

Finally, the court of appeals rejected the States’

equal-sovereignty argument on the merits. App., infra, 49a. The court concluded that the “fundamental

principle of equal sovereignty” does not operate “as a

limit on the Commerce Clause or other Article I powers.” Id. at 36a (citation omitted).

REASONS FOR GRANTING THE PETITION

When petitioners filed suit, EPA’s waiver controlled

for the next four years. As a matter of common sense,

if that waiver were set aside and California were unable to require automakers to produce electric vehicles

instead of liquid-fuel vehicles, automakers would make

or sell at least one more liquid-fuel vehicle over the

course of those four years. That is the whole point of

this hard-fought litigation: that the waiver would do

something to reduce California vehicles’ consumption

of liquid fuel, which necessarily would shift at least a

dollar of business away from liquid-fuel sellers. Indeed, the federal government—never one shy about

raising standing objections—did not even contest petitioners’ Article III standing. Yet the court of appeals

blinded itself to the obvious, and faulted petitioners for

failing to prove by affidavit how third-party automakers would naturally behave.

This Court should grant review to ensure that the

court of appeals’ contrived standing decision does not

imperil future challenges to administrative action. The

court of appeals’ demand for record evidence of automaker behavior cannot be squared with this Court’s

standing decisions, and it conflicts with decisions from

several courts of appeals. Especially concerning, it

would chill many legitimate agency rule challenges

that hinge on third-party action.

This Court should also resolve the merits of petitioners’ challenge to EPA’s statutory authority, together with the States’ constitutional equal-sovereignty challenge. For over a decade, the D.C. Circuit

has avoided resolving whether EPA has authority to

grant a preemption waiver to allow California to address global climate change. The court of appeals’

dodge of the merits here is just the latest installment.

EPA’s (current) position that Congress granted California, alone among the States, the ability to set vehicle-emission standards to combat global climate

change is patently wrong, and raises serious constitutional issues for the reasons discussed in the States’ anticipated petition. Without this Court’s immediate review, California’s unlawful standards will continue to

dictate the composition of the Nation’s automobile

market.

I. THE D.C. CIRCUIT’S STANDING DECISION

WARRANTS THIS COURT’S REVIEW

A. The Decision Below Is Wrong

In the decision below, the D.C. Circuit erected barriers to demonstrating redressability that have no basis in this Court’s Article III jurisprudence. These barriers are especially problematic in cases like this one,

in which the agency action concerns a question of national importance. Such major questions should not be

artificially insulated from judicial review.

1. To demonstrate Article III standing, a plaintiff

must show that he suffered a concrete injury, that the

injury is fairly traceable to the challenged action, and

that his “injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992) (internal quotation marks omitted). A plaintiff

seeking to demonstrate redressability does not need to

establish that a favorable judicial decision would completely cure his injury. Rather, a judicial decision need

only “take steps to slow or reduce” the injury. Massachusetts v. EPA, 549 U.S. 497, 525 (2007). Thus, when

a plaintiff asserts an economic injury, he satisfies the

redressability requirement if a favorable decision

would put even one dollar back in his pocket. Uzuegbunam v. Preczewski, 592 U.S. 279, 292 (2021).

When a plaintiff is the direct object of the challenged regulation, there is usually little question that a

favorable decision from the court would provide redress. See Lujan, 504 U.S. at 561-562. The same

should be true when a plaintiff alleges an “injury pro-

duced by determinative or coercive effect” of the challenged regulation “upon the action of someone else.”

Bennett v. Spear, 520 U.S. 154, 169 (1997). Thus, as

then-Judge Kavanaugh explained, if a plaintiff can

show that a favorable decision “would remove a regulatory hurdle” to third-party conduct that would benefit the plaintiff, that is ordinarily “enough to demonstrate redressability.”

Energy Future Coalition,

793 F.3d at 141; see Corner Post, Inc. v. Board of Governors of the Fed. Rsrv. Sys., 603 U.S. __ (2024) (Kavanaugh, J., concurring) (slip op., at 8) (“[E]ntire classes of administrative litigation . . . have traditionally

been brought by unregulated parties.”).

Even when a plaintiff’s injury arises from “the unfettered choices made by independent actors,” rather

than a rule’s “coercive or determinative effect,” a plaintiff still may establish standing, as long as he can “adduce facts showing that” the third party will behave in

such a way as to “permit redressability of injury.”

Lujan, 504 U.S. at 562. This Court has explained that

a plaintiff may rely on “the predictable effect of Government action on the decisions of third parties,” and

has not required affidavits detailing how third parties

will behave. Department of Commerce, 588 U.S. at 768

(emphasis added). For example, it is predictable that

government regulation of one business “may cause

downstream or upstream economic injuries to others in

the chain.” FDA v. Alliance for Hippocratic Medicine,

602 U.S. __ (2024) (slip op., at 12). By contrast, standing may not rest on “speculation about the decisions of

independent actors” when those decisions would be unlawful or irrational.

Department of Commerce,

588 U.S. at 768 (internal quotation marks omitted).

Thus, when a plaintiff’s standing theory relies on

“counterintuitive” assumptions about third-party behavior, the plaintiff may need to support that theory

with “stronger evidence.”

California v. Texas,

593 U.S. 659, 678 (2021).

Department of Commerce illustrates the difference

between predictable effects (which do not require robust record evidence) and counterintuitive effects

(which do). There, the plaintiffs challenged the inclusion of a census question about citizenship, which they

contended would injure them by causing third-party

noncitizen households to decline to respond to the census. 588 U.S. at 766-767. This Court concluded that

those effects were sufficiently predictable to establish

the causation element of standing—which, like the redressability element, turns on the effect of government

action (or its removal). Id. at 768; see Alliance for Hippocratic Medicine, 602 U.S. at __ (slip op., at 8)

(“[C]ausation and redressability . . . are often flip sides

of the same coin.”) (internal quotation marks omitted).

The Court did not hold that affidavits from noncitizens

attesting that they did not plan to participate in the

census were required. The Court found it sufficient

that noncitizen households had responded to the census at lower rates in the past, and credited the plaintiffs’ common-sense prediction that noncitizens would

respond at even lower rates if the census asked about

their citizenship. See 588 U.S. at 768.

An effect of agency action is “predictable,” rather

than “counterintuitive,” when the agency itself intends

or presupposes that effect. In Massachusetts, for example, this Court relied on EPA’s own statements and

programs to find that ordering EPA to set emission

standards would redress petitioners’ injuries. 549 U.S.

at 526. The Court observed that EPA promoted voluntary emissions-reductions programs, and “would presumably not bother with such efforts,” unless it

thought that emissions reductions would have some effect on the environment. Ibid. In other words, an

agency’s own assumptions about the design of its rule

are strong evidence of the rule’s predictable effects.

2. The decision below departs from this Court’s

sensible approach to redressability. First, petitioners’

injury arises from the “determinative or coercive effect” of California’s standards on third-party automakers. Bennett, 520 U.S. at 169. By requiring automakers to produce vehicles that consume less or no liquid

fuel, California’s standards and EPA’s waiver pose a

legal barrier to the use of petitioners’ products that a

favorable decision would redress. Under this Court’s

cases, no more is needed.

But even if petitioners had to show more, the predictable effect of EPA’s waiver on automakers is obvious: automakers will make and sell more electric vehicles to comply with California’s regulations. Otherwise, California and EPA “would presumably not

bother with such efforts.” Massachusetts, 549 U.S. at

526. If the regulations go away, then the government

will no longer be forcing automakers to sell more electric vehicles than they would otherwise produce in response to market forces. So automakers will make

more vehicles that run on liquid fuel, or they will adjust

their prices in response to consumer demand. That is

Economics 101, not a proposition that requires an affidavit for support.

The contrast with this Court’s recent decision in

Murthy v. Missouri, 603 U.S. __ (2024), further illus-

trates the point. Murthy involved several circumstances that may call redressability into question—

none of which is present here. First, Murthy did not

involve direct government regulation. Here, whatever

independent incentives automakers may have to increase electric-vehicle production, compliance with

California’s standards is mandatory. Second, in

Murthy the government’s alleged influence might not

have mattered at all. Id., slip op., at 12. Here, the

whole point of California’s standards (and EPA’s

waiver) is to require electrification beyond what the

market was demanding. Third, and what the Court in

Murthy called the “key point,” id. at 25 n.10, the government action there had concluded by the time suit

was brought. There was no obvious ongoing harm for

the courts to correct, and so this Court could only

“speculat[e]” about redressability. Id. at 22, 2425. Here, California’s standards and mandate were reinstated just months before petitioners brought suit

and are still in place today. Unlike Murthy, this is a

case where redressability should be beyond question.

The court of appeals nevertheless demanded that

the fuel-manufacturer petitioners supply additional evidence of automakers’ plans. Although the court

acknowledged that it was “possible” that automakers

would change their plans and sell more liquid-fuel vehicles, it faulted petitioners for failing to supply “record evidence,” such as “additional affidavits.” App., infra, 24a (citation omitted). Petitioners’ standing declarations already pointed out that California itself had

projected that a waiver would “reduce emissions

through reductions in fuel production.” C.A. Pet.

Standing Addendum, Swenton Decl. at 5-6 (citation

omitted). They further explained that petitioners’ injuries would be ameliorated if the waiver were vacated.

C.A. Pet. Standing Addendum, Swenton Decl. at 7. Another declaration from the California Air Resources

Board projected that without the standards, “additional gasoline-fueled vehicles” would likely be “produced and sold during these model years.” C.A. States’

Int. Mot., Vanderspek Decl. ¶ 22. But that was not

enough for the court of appeals. In context, it appears

that the only kind of evidence the court would have

found sufficient is an affidavit from an automaker itself, promising to change its production or pricing if the

waiver were vacated.

That requirement is doubly wrong. First, the court

of appeals did not even acknowledge Bennett or Department of Commerce, or recognize that this Court

has allowed plaintiffs to draw logical inferences about

rational economic behavior in assessing causation and

redressability. The court below did not ask whether

the withdrawal of a special regulatory license to California will have “predictable effects” on vehicle sales.

Department of Commerce, 558 U.S. at 768. It simply

assumed that every effect must match up to a line in an

affidavit.

Second, making matters worse, the court of appeals

appeared to require plaintiffs to obtain affidavits from

the directly regulated parties—here, the automakers.

But directly regulated parties may have good reasons

for not wanting to participate in the litigation. Maybe

they intend to pass on the costs, or the government has

garnered their complicity with some carrot that makes

up for the regulatory stick. Indeed, that is exactly

what happened here, as several automakers entered

into “California Framework Agreements” committing

themselves to acceding to California’s standards in exchange for certain benefits, like additional lead time.

C.A. Resp.-Int. Br. 4.

Petitioners’ standing to challenge an agency action

should not depend on automakers’ current preferences

to partner with them. The contrary rule adopted below

creates an unworkable hurdle to establishing standing

in agency rule challenges—one with no basis in precedent or logic.

3. The court’s flawed approach could doom any

challenge to a similar time-limited agency rule that requires some lead time to implement. Petitioners sued

within 60 days of EPA’s March 2022 order. Yet the

court held that petitioners already could not obtain effective relief because of the waiver’s “relatively short,”

four-year “duration.” App., infra, 22a; see Davis v.

FEC, 554 U.S. 724, 734 (2008) (standing is assessed as

of the date “when the suit was filed”). Additionally, by

grounding its determination in standing, rather than

mootness, the court dismissed the case without even

holding EPA to its burden of establishing mootness or

considering exceptions.

B. The Decision Below Creates A Conflict

Among The Courts Of Appeals

By imposing artificial hurdles on Article III’s redressability requirement, the court of appeals split

from several other courts of appeals. The Second,

Fifth, Eighth, and Ninth Circuits—and even the D.C.

Circuit in other cases—have all found standing based

on a law’s coercive or predictable effects on third parties, without requiring the sort of record evidence demanded below. Under the D.C. Circuit’s approach in

this case, those cases would have been (wrongly) dismissed on standing grounds.

The Second Circuit has found standing based on a

rule’s predictable effects on third parties, without requiring third-party affidavits or similar evidence. In

NRDC v. NHTSA, 894 F.3d 95 (2018), the court of appeals considered an environmental group’s challenge

to NHTSA’s decision to delay a rule increasing civil

penalties for violations of fuel-economy standards. The

petitioners asserted an environmental injury based on

the assumption that third-party automakers would be

less compliant when civil penalties were lower. Id. at

104. In finding standing, the court relied on “common

sense and basic economics,” which “tell us that the increased cost of unlawful conduct will make that conduct

less common.” Id. at 105. Automaker intervenors

there had posited that penalties “ha[d] the potential”

to affect their decisions, ibid., but the court did not demand affidavits proving how automakers would behave.

The Fifth Circuit has followed the same approach.

In General Land Office v. Biden, 71 F.4th 264 (2023),

the court of appeals considered Texas’s challenge to

the Department of Homeland Security’s decision to divert funds appropriated for the construction of a wall

along the United States–Mexico border. Texas asserted injuries premised on the assumption that the diversion of funds would cause more unlawful immigration. Without requiring affidavits from undocumented

immigrants, the Fifth Circuit adopted the commonsense point that “[i]n the absence of longer walls, at

least some illegal aliens who otherwise would have

been prevented from entering Texas will seek” benefits

from the State. Id. at 273.

The Eighth Circuit, too, has relied on the predictable effects on third parties to find an injury redressable, without requiring a third-party affidavit. Wieland

v. Department of Health & Human Services, 793 F.3d

949 (2015), involved a challenge to provisions of the Affordable Care Act that required certain insurers to

cover contraceptive services. Plaintiffs, who wanted a

contraception-free option, satisfied the redressability

requirement, because although an order enjoining

those laws would not require insurers to offer a

contraception-free option, it was “likely” that insurers

would respond that way. Id. at 957.

The Ninth Circuit has applied similar reasoning. It

found standing for plaintiffs challenging a California

directive that required certain insurers to offer abortion coverage. See Skyline Wesleyan Church v. California Dep’t of Managed Health Care, 968 F.3d 738,

750 (2020). The court of appeals did not demand affidavits from the insurers, concluding both that the directive had a “determinative or coercive effect” on the

insurers, and that “the predictable effect” of a favorable judicial decision included that “at least one insurer

would be willing to sell” a plan without abortion coverage. Ibid.

The decision below is not even faithful to the D.C.

Circuit’s own standing precedent. In Energy Future

Coalition, 793 F.3d 141, a case with strikingly parallel

facts to this one, the D.C. Circuit held that fuel producers had standing to challenge an EPA rule effectively

banning vehicle manufacturers from using certain fuel

in emissions testing. Id. at 144. In an opinion by thenJudge Kavanaugh, the court held that the plaintiffs had

established redressability, reasoning that “if EPA permitted vehicle manufacturers to use” the contested test

fuel, “there is substantial reason to think that at least

some vehicle manufacturers would use it.” Ibid. The

court credited the common-sense, predictable effects

of EPA’s rule on third parties. Yet here, after criticizing petitioners for believing their standing was “selfevident” under existing precedent, App., infra, 31a, the

court below failed to even address this precedent on

which petitioners’ standing argument was based.

Ultimately, the court of appeals’ decision in this case

cannot be squared with any of the above decisions. In

each of them, the court relied on common-sense inferences about how third parties behave in response to legal barriers to certain behavior. None of them demanded the specific factual showing that the court required here. This Court should correct the D.C. Circuit’s outlier position before it sows significant confusion in this area.

C. The Question Presented Is Important And

Warrants Review In This Case

The question presented is exceptionally important,

and this case presents an appropriate vehicle to consider it.

1. The decision below threatens to chill legitimate

challenges to agency action. The D.C. Circuit has traditionally served as the primary home for litigation under the Administrative Procedure Act, and it is the exclusive venue for challenges to emission standards under the Clean Air Act. That makes its new barrier to

agency challenges especially problematic. As the decisions in the circuit split illustrate, there are many circumstances in which third parties directly regulated by

an agency rule have different incentives from an in-

jured petitioner. Here, the preferences of car manufacturers and fuel manufacturers may diverge, including because car manufacturers have been offered some

regulatory flexibility that benefits them but not fuel

producers. In other cases, a similar dynamic may arise

between businesses and consumers, insurers and insured parties, and any number of other sets of potential

petitioners. If every regulatory petitioner in the D.C.

Circuit must secure the cooperation of a directly regulated party to establish standing, a significant swath of

challenges may be doomed from the start.

The D.C. Circuit’s unnecessary and unprecedented

hurdle also creates bad incentives for agencies. Under

the D.C. Circuit’s rule, agencies could intentionally

structure their actions to placate directly regulated

parties and thereby foreclose future litigation. Those

actions would still have sweeping effect, but the directly regulated parties—who would be the only

potential plaintiffs—would have no incentive to sue.

The result is an agency roadmap of particular concern

because it insulates even major decisions like this one

from judicial review.

At bottom, the entire purpose of California’s standards and EPA’s waiver determination is to reduce

liquid-fuel usage and mandate electrification. That

goal is existential to the liquid-fuel industry, even if it

does not immediately threaten car manufacturers.

Fuel manufacturers are the obvious parties to challenge the regulations. The fact that fuel producers are

not directly regulated, when they are the direct target

of the regulations, should not prevent them from establishing their standing to sue.

2. This case presents an appropriate vehicle for addressing this important issue. The redressability question determines petitioners’ standing, as neither the

court of appeals nor EPA has questioned petitioners’

showing of injury or causation. See App., infra, 20a.

EPA has raised concerns about mootness, see id. at

25a, but the Court can decide this case before it becomes moot. The party asserting mootness “bears the

burden to establish” that the case “has become moot.”

West Virginia, 597 U.S. at 719. To meet that burden,

EPA would have to show that “it is impossible” for the

Court “to grant any effectual relief.” United States v.

Washington, 596 U.S. 832, 837 (2022) (emphasis

added). It is far from impossible here: if this Court

grants certiorari in October Term 2024, it will presumably render a decision before model year 2025 ends.

And even if EPA could somehow establish mootness,

this case would fall within the capable-of-repetition exception because of the order’s relatively short duration

and the likelihood that petitioners will be “subjected to

the same action again” when EPA issues future waivers. United States v. Sanchez-Gomez, 584 U.S. 381, 391

(2018).

II. THIS COURT SHOULD ALSO REACH THE

MERITS AND VACATE THE WAIVER

This Court should also grant the second question

presented and decide whether EPA has the authority

to grant California a preemption waiver to address

global climate change. Because California’s waiver expires at the end of model year 2025, it is quite possible

the D.C. Circuit will not decide the merits on remand

in time for this Court’s subsequent review. This EPA

will no doubt take the same approach to its next waiver

determinations, and petitioners will then spend years

suffering ongoing injury from California’s next set of

unlawful standards and mandates. Reaching the merits now would avoid that serious unfairness. EPA is

wrong on the merits, and there is no reason to wait additional years to resolve an issue the D.C. Circuit has

punted for over a decade.

A. EPA’s Decision Is Wrong

The Clean Air Act does not authorize the preemption waiver that EPA granted here. Section 209(a) establishes federal control over motor-vehicle-emission

standards. 42 U.S.C. § 7543(a). Because of California’s

unique “smog problem,” Section 209(b) gives that State

alone the right to set its own emission standards. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. New York

State Dep’t of Env’t Conservation, 17 F.3d 521, 526 (2d

Cir. 1994). But Congress’s baseline was nationwide

preemption, and it tailored California’s special exemption accordingly. As a result, EPA must find that California’s standards are “need[ed]” to “meet compelling

and extraordinary conditions” in California. 42 U.S.C.

§ 7543(b)(1)(B).

The California regulations here do not meet the

statutory criteria. First, California’s standards do not

target conditions “extraordinary” to California because they were created to address global climate

change, which is by definition not a phenomenon particular to California. Second, California does not

“need” its separate standards to “meet” those conditions because, by EPA’s own admission, the standards

will not materially reduce the impacts of climate

change in California or anywhere else. And EPA’s pri-

mary defense—that California needs its “whole program,” even if not these particular standards—lacks

any basis in the text or common sense.

1. Global climate change is not an

“extraordinary” California condition

within the meaning of Section 209

The Clean Air Act’s text, structure, and history

demonstrate that the phrase “compelling and extraordinary conditions” refers to California’s distinctive local pollution problems; it does not encompass conditions with global cause and effect, like climate change.

a. California’s separate emission standards must be

needed to meet “compelling and extraordinary conditions.” 42 U.S.C. § 7543(b)(1)(B). The plain meaning of

“extraordinary” is “most unusual.” Webster’s New International Dictionary 807 (3d ed. 1961). On its own,

that definition could mean “most unusual” compared to

ordinary pollution problems or “most unusual” compared to other States’ problems. In context, it must

mean the latter. The Clean Air Act pairs “extraordinary” with “compelling,” and “compelling” already

captures a sense of magnitude. To avoid rendering “extraordinary” redundant, it must mean “most unusual”

as compared to other States.

Related statutory provisions support reading the

phrase “compelling and extraordinary” to encompass

severe local conditions. For example, Section 177 authorizes other States to adopt California’s standards as

part of approved plans for combatting the six criteria

pollutants that cause local pollution problems. See

42 U.S.C. § 7507. Congress thus plainly contemplated

that the standards California would adopt under Sec-

tion 209(b)—that other States might copy under Section 177—would help States attain local ambient airquality standards within their respective borders.

More generally, the structure of Section 209 makes

clear that Section 209(b) is an exception from a uniform

federal regulatory regime. See 42 U.S.C. § 7543(a). It

would make little sense to permit California to function

as a junior-varsity EPA and deviate from a national

regulatory framework to address conditions that are

broadly shared throughout the Nation.

Section 209(b)’s history and purpose confirm that it

authorizes preemption waivers only for California

standards aimed at local air-quality issues. In drafting

Title II, Congress repeatedly identified California’s

“peculiar” circumstances: its “unique problems” resulting from local emissions and pollution concentrations interacting with the State’s distinctive “climate

and topography.” H.R. Rep. No. 90-728, at 22 (1967).

As the D.C. Circuit explained decades ago, “clearly the

intent” of the waiver provision was to “focus on local

air quality problems” that “may differ substantially

from those in other parts of the nation.” Ford Motor

Co. v. EPA, 606 F.2d 1293, 1303 (1979) (emphasis

added).

b. Global climate change is not a condition “extraordinary” to California. By definition, global climate

change is neither unique to California nor uniquely felt

by the State. As EPA found in 2019, when it comes to

the effects of climate change, California is not “worsepositioned in relation to certain other areas.” 84 Fed.

Reg. at 51,348 n.278. In fact, “[m]any parts of the

United States, especially western States, may have issues [caused by climate change] related to drinking water” and “wildfires, and effects on agriculture.” Id. at

51,348. In other words, “effects related to climate

change in California” are “not sufficiently different

from the conditions in the nation as a whole to justify

separate State standards.” Id. at 51,344. EPA did not

revisit that finding in 2022. The agency thus provided

no basis to depart from its prior conclusion, let alone

the heightened showing necessary for a reversal.

To be sure, EPA argued below that California’s

standards do address local conditions because they

may have side effects on local criteria pollution. But

that argument is wrong both legally and factually. As

a legal matter, EPA cannot contrive a new goal for California’s standards not presented in California’s waiver

application. No one disputes that the express purpose

of California’s standards was to regulate global climate

change. Moreover, EPA’s argument is not supported

by the factual record. In the waiver reinstatement,

EPA relied on the “logical link” between ozone pollution and greenhouse gases—namely, that ozone levels

are “exacerbate[d]” by higher temperatures caused by

global warming. App., infra, 207a-208a. But EPA previously found that the State’s rules would produce

“likely no change” to climate-change conditions—including rising temperatures—in California. 84 Fed.

Reg. at 51,341. If California’s standards will not

change temperatures, then they cannot affect ozone

levels under EPA’s “logical link” theory either.

2. California does not “need” its own

emission standards to “meet” climatechange conditions

Even if California faced “extraordinary” conditions

within the meaning of Section 209(b) from global climate change, it does not “need” its greenhouse-gas

standards and zero-emission-vehicle mandate to

“meet” those conditions. To the contrary, as EPA explained in 2019, California’s standards “will not meaningfully address global air pollution problems of the

sort associated with [greenhouse-gas] emissions.”

84 Fed. Reg. at 51,347, 51,349.

a. A Section 209(b) waiver is authorized when

“need[ed]” to “meet” conditions in California—that is,

only if the proposed California emission standards

would appreciably affect the conditions that warrant

them. That accords with the ordinary meaning of the

statutory terms “need” and “meet.” The verb “need”

means to “be necessary.” Webster’s New International

Dictionary, supra, at 1512. And the term “necessary”

typically means “essential; indispensable.” American

Heritage Dictionary 877 (1st ed. 1969). The verb

“meet” is complementary. In this context, it means to

“satisfy (a demand, need, obligation).” Id. at 816.

Putting the terms together, two things are clear.

First, California must “need”—i.e., require as essential

or very important—specific standards that differ from

federal standards. Second, California’s standards

must meaningfully address the conditions that give rise

to California’s need for separate standards. At a minimum, if the State’s proposed standards have no impact

on those conditions, then they cannot be said to be necessary, essential, or indispensable to “meet” the conditions the State faces.

b. Based on EPA’s own undisturbed factual findings, California does not satisfy that standard for a

preemption waiver. In vacating California’s waiver,

EPA previously found that California’s greenhousegas standards would “lea[d] to little to no change” in

“[greenhouse-gas] emissions at a national level,” and

“would result in an indistinguishable change in global

temperatures” and “likely no change in temperatures

or physical impacts resulting from anthropogenic climate change in California.” 84 Fed. Reg. at 51,341,

51,353 (emphases added). Critically, in reinstating the

waiver, EPA did not disturb these findings about the

futility of California’s standards.

3. EPA’s whole-program approach is wrong

In defending its reinstatement decision, EPA has

primarily argued that Section 209(b)(1)(B)—which

permits EPA to grant a preemption waiver only if

“need[ed]” to “meet” “compelling and extraordinary

conditions”—is effectively irrelevant. Under EPA’s

“whole program” approach, so long as California needs

any separate standards at all—say, to combat smog—

the State has satisfied the “need[s] . . . to meet” requirement. See 87 Fed. Reg. at 14,335. At that point,

California can add on any other emission standards it

wants and tackle global problems as it sees fit.

EPA’s whole-program approach is atextual and defies common sense. EPA relies on language elsewhere

in Section 209(b) requiring that California “determine[] 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) (emphasis added). But Section 209(b)’s “in

the aggregate” language does not carry down to the

rest of 209(b). For example, Subsection (b)(1)(C) requires EPA to ensure that manufacturers have sufficient lead time to meet California’s standards. See

42 U.S.C. § 7521(a)(2). EPA does not assess whether

manufacturers would have adequate lead time “in the

aggregate”—that would make no sense. See 84 Fed.

Reg. at 51,332; see also C.A. Pet. Br. 46. Similarly,

EPA has a separate duty in Section 209(b)(1)(B) to determine whether California “need[s] such State standards to meet compelling and extraordinary conditions.”

42 U.S.C. § 7543(b)(1)(B). That determination, like the

neighboring lead-time determination, is not done “in

the aggregate.”

EPA’s reading would also make the Section

209(b)(1)(B) criteria meaningless. Congress already

determined that California “need[s]” its own emissions

program by creating the preemption exception in the

first place. On EPA’s view, however, subsection

(b)(1)(B) serves no independent purpose so long as California has any air-quality issues. This assertion cannot withstand minimal scrutiny, as the D.C. Circuit

panel appeared to recognize at oral argument. See C.A.

Oral Arg. Tr. 45:30 (Wilkins, J., criticizing EPA’s

“whole program” approach).

4. Clear-statement rules favor petitioners’

reading

Even if EPA’s interpretation were possible, several

clear-statement rules require petitioners’ reading.

First, principles of constitutional avoidance require

petitioners’ reading. The State petitioners have argued that Section 209(b) deviates from the “fundamental principle of equality of the states under the Constitution.” Bolln v. Nebraska, 176 U.S. 83, 89 (1900). This

equal-sovereignty question is at least a serious one,

and this Court should adopt a more modest interpretation of California’s waiver authority to avoid it. Solid

Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 160 (2001). Even if Congress

could grant California the unique ability to address a

local problem, it would be a far graver intrusion on

equal-sovereignty principles to grant California alone

the ability to address global climate change. Cf. South

Carolina v. Katzenbach, 383 U.S. 301, 328-329 (1964)

(“The doctrine of the equality of States” does not bar

“remedies for local evils which have subsequently appeared.”).

Second, the major-questions doctrine applies to California’s efforts to tackle global climate change and

force a transition to electric vehicles. This Court “expect[s] Congress to speak clearly if it wishes to assign

to an agency decisions of ‘vast economic and political

significance.’ ”

Utility Air Regul. Grp. v. EPA,

573 U.S. 302, 324 (2014) (citation omitted). On EPA’s

view, Section 209 authorizes the agency to permit California to adopt vehicle-emission standards to tackle

climate change, and to force a transition to electric vehicles that would have enormous repercussions for the

national economy, the States’ electric grids, and national security. This Court should “greet” EPA’s “assertions of ‘extravagant statutory power over the national economy’ with ‘skepticism.’ ” West Virginia,

597 U.S. at 724 (citation omitted).

Third, the federalism canon points in the same direction. Congress must be “unmistakably clear in the

language of the statute” if it “intends to alter the ‘usual

constitutional balance between the States and the Federal government.’ ” Gregory v. Ashcroft, 501 U.S. 452,

460-461 (1991) (citation omitted). Yet under EPA’s

view, California alone among the States can regulate

the nation’s automobile market in the service of addressing climate change and forcing a transition to

electric vehicles.

B. The Question Presented Is Important, Is

Implicated In The States’ Petition, And

Repeatedly Evades Review

The extent of EPA’s authority to grant California a

preemption waiver warrants this Court’s immediate

review. It is a question that shapes the direction of the

entire country’s automobile industry but that has repeatedly evaded judicial scrutiny. And it is a question

antecedent to the constitutional issue that the court of

appeals reached and that is the subject of the State petitioners’ concurrent challenge.

1. Section 209(b), if construed to allow California

to tackle nationwide issues like global climate change,

becomes a huge source of power to regulate the country’s economy. California is a significant market in its

own right, and 17 States and the District of Columbia

have opted into at least some of California’s standards.

See supra, p. 10. Additionally, both EPA and NHTSA

have relied on California’s standards in setting their

respective (and unlawful) vehicle-emission standards

aimed at forcing electrification. See 86 Fed. Reg.

74,434, 74,457-74,458 (Dec. 30, 2021); 87 Fed. Reg.

25,710, 25,762-25,765 (May 2, 2022). No wonder California’s governor described its vehicle-emission rules

as “one of the most significant steps to the elimination

of the tailpipe as we know it.” Coral Davenport et al.,

California to Ban the Sale of New Gasoline Cars, N.Y.

Times (Aug. 24, 2022), https://www.nytimes.com/2022/

08/24/climate/california-gas-cars-emissions.html.

A wait-and-see approach would embolden California

to stretch Section 209(b) even further. Since petitioners brought this case, California has adopted its

so-called Advanced Clean Cars II standards, along

with Advanced Clean Fleets and Advanced Clean

Trucks rules, which collectively mandate 100% electrification of every class of new vehicles by 2036. See

CARB, Public Hearing to Consider the Proposed Advanced Clean Cars II Regulations 12 (Apr. 12, 2022),

http://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022

/accii/isor.pdf. EPA’s waiver thus enables California to

force automakers to electrify their entire fleets in California and any State that adopts its standards.

2. This Court should also grant review of the second question because the States’ anticipated petition

presents a serious constitutional question that should

be considered together with petitioners’ statutory challenge. The State petitioners are challenging the D.C.

Circuit’s decision holding that Section 209 does not violate the principle of equal sovereignty. Unless this

Court grants review of both questions presented here,

the Court will not have complete briefing on a narrower

statutory alternative to resolving the States’ constitutional challenge.

3. Finally, this Court should hear the second question presented because it has for too long evaded this

Court’s review and may otherwise continue to do so.

The challenged waiver is in effect only through model

year 2025. That means that there will likely be time for

a merits decision in this Court, or a remand and potential merits decision in the court of appeals, but not both

without having to litigate mootness issues that may

complicate this Court’s review.

Petitioners have endured decades of regulatory

whiplash only for the D.C. Circuit to repeatedly reject

any legal challenges on threshold grounds. Absent this

Court’s review, petitioners will be back at square one,

having to litigate additional challenges to EPA’s next

waiver, all while suffering ongoing injury. Critical

American industries deserve the certainty that can

only be provided by this Court’s finally defining the extent of EPA’s authority under Section 209(b).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ERIC D. MCARTHUR

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

Counsel for American Fuel &

Petrochemical Manufacturers,

Domestic Energy Producers

Alliance, Energy Marketers of

America, and National Association of Convenience Stores

MICHAEL BUSCHBACHER

JARED M. K ELSON

BOYDEN GRAY PLLC

801 17th Street NW

Suite 350

Washington, DC 20006

Counsel for Clean Fuels Development Coalition, ICM,

Inc., Illinois Corn Growers

Association, Kansas Corn

Growers Association, Michigan Corn Growers Association, Missouri Corn Growers

Association, and Valero Renewable Fuels Company, LLC

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

ZOE A. JACOBY

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

LESLIE B. ARFFA

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

Counsel for Valero Renewable

Fuels Company, LLC

RICHARD S. MOSKOWITZ

AMERICAN FUEL & P ETROCHEMICAL M ANUFACTURERS

1800 M Street NW

Suite 900 North

Washington, DC 20036

Counsel for American Fuel &

Petrochemical Manufacturers

BRITTANY M. PEMBERTON

BRACEWELL LLP

2001 M Street NW

Suite 900

Washington, DC 20036

Counsel for Diamond Alternative Energy, LLC and Valero

Renewable Fuels Company,

LLC

MATTHEW W. MORRISON

SHELBY L. DYL

PILLSBURY WINTHROP SHAW

PITTMAN LLP

1200 Seventeenth Street NW

Washington, DC 20036

Counsel for Diamond Alternative Energy, LLC, Iowa Soybean Association, The Minnesota Soybean Growers Association, and South Dakota Soybean Association

JULY 2, 2024

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion

(Apr. 9, 2024) . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B — Decision of the Environmental

Protection Agency (Mar. 14, 2022) . . 50a

Appendix C — Statutory provisions:

42 U.S.C. § 7507—New motor

vehicle emission standards in

nonattainment areas . . . . . . . . . . . 286a

42 U.S.C. § 7543—State

standards . . . . . . . . . . . . . . . . . . . . . 287a

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

No. 22-1081, Consolidated with

22-1083, 22-1084, 22-1085

STATE OF OHIO, et al.,

Petitioners

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

September 15, 2023, Argued; April 9, 2024, Decided

On Petitions for Review of a Final Action

of the Environmental Protection Agency

(1a)

OPINION OF THE COURT

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

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

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

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

Kansas, Commonwealth of Kentucky, State of Louisiana, State of

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

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

Utah, and State of West Virginia.

2. Fuel Petitioners are American Fuel & Petrochemical

Manufacturers, Clean Fuels Development Coalition, Diamond

Alternative Energy, LLC, Domestic Energy Producers Alliance,

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

we hold that State Petitioners have standing to raise their

constitutional claim, we reject it on the merits.

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

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.

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 (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

st a nda rds t o meet comp el l i ng a nd

extraordinary conditions, or

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).

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. 90-728, at 21–23, 96–97

(1967). California was also the only state with its own

motor vehicle emissions standards, and its leadership in

automobile emissions regulation had been valuable to the

federal government in crafting the Clean Air Act. See

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

21–23, 96–97. At the same time, automobile manufacturers

were growing concerned that other states might begin

regulating automobile emissions, subjecting them to a

patchwork of regulatory obligations and significantly

increasing manufacturing costs. See H.R. Rep. No.

90-728, at 21; see also Engine Mfrs. Ass’n v. EPA, 88

F.3d 1075, 1079, 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.

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 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

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 fiftyfive 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

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/HCS4X7NP (last visited Mar. 27, 2024).

10a

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 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).

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

11a

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

have particularly harmful impacts on California due to its

large agriculture and ocean-based economies, dependence

on an over-stressed water supply, long coastlines, and

susceptibility to wildfires. See California State Motor

Vehicle Pollution Control Standards; Notice of Decision

Granting a Waiver of Clean Air Act Preemption for

California’s 2009 and Subsequent Model Year Greenhouse

Gas Emission Standards for New Motor Vehicles, 74 Fed.

Reg. 32744, 32746 (July 8, 2009).

To combat these challenges, in 2005, California

applied for a waiver for a new set of regulations limiting

greenhouse gas emissions. See Cal. Air Res. Bd., LowEmission 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

12a

Year Greenhouse Gas Emission Standards for New Motor

Vehicles, 74 Fed. Reg. 32744, 32745–46 (July 8, 2009).

In 2012, California applied for the waiver at issue in

this case, seeking to promulgate a new set of regulations

called the Advanced Clean Car Program. See California

State Motor Vehicle Pollution Control Standards; Notice of

Decision Granting a Waiver of Clean Air Act Preemption

for California’s Advanced Clean Car Program and a

Within the Scope Confirmation for California’s Zero

Emission Vehicle Amendments for 2017 and Earlier

Model Years, 78 Fed. Reg. 2112 (Jan. 9, 2013). The new

regulations included a Low Emission Vehicle (“LEV”)

Program, which set emissions requirements for new cars

in Model Years 2017 to 2025 with the goal of reducing

carbon dioxide emissions by thirty-four percent, and a

ZEV Program, which required around fifteen percent of

manufacturers’ fleets to be electric cars by Model 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).

13a

The EPA withdrew the 2013 waiver on September

27, 2019. The Safer Affordable Fuel-Efficient (SAFE)

Vehicles Rule Part One: One National Program, 84 Fed.

Reg. 51310 (Sept. 27, 2019) (“2019 Withdrawal Decision”).

The EPA offered three bases for the withdrawal. Id. at

51328–41. First, the 2013 waiver conflicted with a recent

determination by the National Highway Traffic Safety

Administration (“NHTSA”) that state greenhouse gas

regulations were preempted by a provision of the EPCA

that prohibits states from enacting their own fuel economy

standards. Id. at 51337–38; see also 49 U.S.C. § 32902(a),

(f) (empowering the NHTSA to set federal fuel economy

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

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

no longer follow a “whole program” interpretation of

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

individual California standard met the requirement that

it be necessary to “meet compelling and extraordinary

conditions.” 2019 Withdrawal Decision, 84 Fed. Reg. at

51341 (quoting 42 U.S.C. § 7543(b)(1)). Third, California

could not show that its LEV and ZEV regulations were

necessary to meet compelling and extraordinary conditions

because California could not 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,

14a

and Volkswagen entered into independent agreements

with California to continue reducing emissions. See

Revised 2023 and Later Model Year Light-Duty Vehicle

Greenhouse Gas Emissions Standards, 86 Fed. Reg.

74434, 74458 (Dec. 30, 2021). Under these agreements,

the automakers would continue to meet the LEV

and ZEV standards in the California regulations. Id.

Automakers were motivated to sign these agreements by

the investments they had already made in updating their

fleets and growing consumer demand for electric vehicles.

See J.A. 155–57.

In 2021, under the Biden Administration, the EPA

revisited its 2019 withdrawal of the 2013 waiver. California

State Motor Vehicle Pollution Control Standards;

Advanced Clean Car Program; Reconsideration of

a Previous Withdrawal of a Waiver of Preemption;

Opportunity for Public Hearing and Public Comment,

86 Fed. Reg. 22421 (Apr. 28, 2021). On March 14, 2022, the

EPA reinstated its 2013 waiver for California’s Advanced

Clean Car Program. 2022 Waiver Reinstatement Decision,

87 Fed. Reg. at 14332. As a result of that reinstatement,

California’s LEV and ZEV standards for Model Years

2017 through 2025 came back into force. Id. at 14333.

The EPA provided three explanations for its 2022 Waiver

Reinstatement Decision: the EPA exceeded its inherent

authority to revisit its 2013 decision; it improperly

rejected the “whole program” approach; and it improperly

considered the NHTSA’s view of the EPCA, which was

beyond the scope of Section 209(b). Id. at 14333–35.

15a

On May 12, 2022, State Petitioners filed a petition

for review in this Court challenging the EPA’s decision

to reinstate the 2013 waiver (22-1081). That same day,

three groups of Fuel Petitioners filed petitions for

review of the same EPA action (22-1083, 22-1084, and

22-1085). The Court consolidated these cases (22-1081).

California and several other states and cities (collectively,

“California”), 4 environmental organizations, 5 and

automobile manufacturers6 have intervened in support

of respondents in the consolidated case.

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

the City of New York, Massachusetts, Pennsylvania, the District

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

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

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

and Washington.

5. The environmental organization intervenors are the Center

for Biological Diversity, the Clean Air Council, the Conservation Law

Foundation, the Environmental Defense Fund, the Environmental

Law and Policy Center, the National Parks Conservation Association,

the Natural Resources Defense Council, the Public Citizen, the

Sierra Club, and the Union of Concerned Scientists.

6. The automobile manufacturer intervenors are Ford Motor

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

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

LLC, the National Coalition for Advanced Transportation, Advanced

Energy Economy, Calpine Corporation, National Grid USA, the New

York Power Authority, and the Power Companies Climate Coalition.

16a

In their petition, Fuel Petitioners argue that the 2022

decision was arbitrary and capricious and exceeded the

EPA’s authority under Section 209(b) because climate

change is not a “compelling and extraordinary condition,”

and California does not “need” its standards to “meet”

its climate conditions. See, e.g., Fuel Pet. Br. 10–11. In

challenging the EPA’s determination of California’s

“need,” Fuel Petitioners argue that the EPA’s aggregate

approach is wrong. Id. Meanwhile, State Petitioners

claim that by granting a waiver to California, but not to

any other state, the EPA has violated State Petitioners’

constitutional right to equal sovereignty. See State Pet.

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

is contrary to the preemption of state fuel economy

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

We hold that neither Fuel Petitioners as to their

statutory claims nor State Petitioners as to their EPCA

claims establish standing to bring suit, and thus we do

not reach the merits of their claims. We reject State

Petitioners’ constitutional claim on the merits.

II.

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

17a

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 (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

18a

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).

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

19a

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.

Fuel Petitioners argue that, by requiring vehicle

manufacturers to sell vehicles that use less or no liquid

fuel, California’s LEV and ZEV requirements depress

the demand 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

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).

20a

involved with producing or selling fuel and that the waiver

causes Fuel Petitioners economic injury by reducing the

demand for fuel and related products.

State Petitioners, meanwhile, allege three financial

injuries that they contend are caused by the waiver.

First, the waiver causes manufacturers to increase the

cost of conventional vehicles elsewhere in the country in

order to account for the cost of meeting the requirements

imposed on manufacturers by the waiver granted to

California. State Petitioners explain that because they

purchase conventional vehicles, the increase in the prices

for those vehicles that results from the waiver causes

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

Second, State Petitioners contend that the greater shift

to electric vehicles that results from the waiver will

cause State Petitioners to generate less fuel-tax revenue.

Id. Finally, State Petitioners argue that the increase

in electric vehicles caused by the waiver will affect the

States’ electrical grids. In support of their standing

claims, State Petitioners offer a declaration from each

individual State Petitioner and a declaration from an

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

declaration states that the state purchases conventional

(that is, gas-or diesel-powered) vehicles. State Pet.

Add. 6–36. In his declaration, Dr. Zycher contends that

California’s ZEV requirement will have several economic

impacts on State Petitioners, including an increase in the

cost of conventional vehicles nationwide, a “decline in the

quality of delivered state services,” a reduction in “fuel

tax revenues available for the provision of highway and

21a

road services,” and an “increase in the costs and prices of

delivering electric power services.” State Pet. Add. 38–39.

The EPA and California both dispute that State

and Fuel Petitioners’ allegations and evidence establish

injury and causation sufficient to support standing. EPA

Br. 23–28 (arguing State Petitioners fail to demonstrate

standing); California Br. 9–15 (arguing both State and Fuel

Petitioners fail to demonstrate standing). For example,

as to causation, California argues that both groups of

Petitioners fail to demonstrate that their alleged injuries

are caused by the 2022 waiver reinstatement, rather than

the original 2013 waiver or rising consumer demand for

electric vehicles more generally. California Br. 11, 14. But

this Court need not definitively decide whether either

set of Petitioners has established injury or causation.

However robust their claims of injury and causation

are, State and Fuel Petitioners spend considerably less

time explaining how those injuries are redressable.

Indeed, even assuming that both sets of Petitioners have

established injury and causation sufficient for standing,

Petitioners’ standing arguments fail for the same reason:

Both groups of Petitioners fall far short of meeting their

burden of demonstrating a “substantial probability” that

their alleged injuries would be redressed by a favorable

decision by this 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

22a

more; to the extent that Fuel Petitioners’ declarations

discuss redressability at all, the declarations state that

the injuries discussed therein “would be substantially

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

Petitioners’ opening brief is similarly conclusory regarding

redressability. State Petitioners assert that their “injuries

are redressable because a judgment setting aside the

waiver would eliminate the source of their injuries.” State

Pet. Br. 16. However, none of the declarations submitted

by State Petitioners with their opening brief addresses

redressability at all.

The difficulty for Fuel and State Petitioners is

that their claimed injuries “hinge[] on” the actions of

third parties—the automobile manufacturers who are

subject to the waiver. Chamber of Com., 642 F.3d at

201. Redressability, too, “hinge[s] on the response of”

those same automobile manufacturers. Lujan, 504 U.S.

at 562. Both groups of Petitioners’ injuries would be

redressed only if automobile manufacturers responded

to vacatur of the waiver by producing and selling fewer

non-conventional vehicles or by altering the prices of their

vehicles such that fewer non-conventional vehicles—and

more conventional vehicles—were sold.

And, aside from turning on the actions of the automobile

manufacturers subject to the waiver, redressability is

further complicated by the relatively short duration of

the waiver that Petitioners challenge. These petitions

for review concern only the EPA’s decision, in March

2022, to reinstate the waiver it had previously granted

California as to Model Years 2017 through 2025. See 2022

23a

Waiver Reinstatement Decision, 87 Fed. Reg. 14337. Thus,

to meet their burden of demonstrating redressability,

both sets of Petitioners must demonstrate a “substantial

probability” not only that automobile manufacturers are

likely to respond to a decision by this Court by changing

their fleets in a way that alleviates their injuries in some

way, but also that automobile manufacturers would do so

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

216 F.3d at 63.

The record evidence provides no basis for us to

conclude that manufacturers would, in fact, change course

with respect to the relevant model years if this Court were

to vacate the waiver. To begin, Petitioners fail to point to

any evidence affirmatively demonstrating that vacatur of

the waiver would be substantially likely to result in any

change to automobile manufacturers’ vehicle fleets by

Model Year 2025. The only evidence points in the opposite

direction, indicating that automobile manufacturers need

years of lead time to make changes to their future model

year fleets. In a comment submitted to the EPA during the

rulemaking process regarding the EPA’s 2019 recission

of the 2013 waiver, for example, Ford Motor Company

stated that its product cycle requires several years of

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

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

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

if the regulatory landscape shifted in some way, “little

or nothing could be done to re-optimize the company’s

product plans, which are largely fixed for the next few

years.” Id. Further, the record indicates that other

automobile manufacturers would also require years

24a

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 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

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.

25a

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 cost-benefit analyses of third parties

over whom it has no jurisdiction and about whom it has

almost no information.”).

When asked about redressability at oral argument,

c ou n s el for F uel Pet it ione r s e mph a s i z e d t h at

redressability—as with each prong of standing—is

assessed when a lawsuit is first filed. Oral Argument

Transcript 74; see also Del Monte, 570 F.3d at 325 (“[S]

tanding is assessed as of the time a suit commences.”). True

enough. But that does not help Fuel Petitioners: Even “as

of the time” this lawsuit commenced, Fuel Petitioners had

failed to point to any evidence in the record showing that

their alleged injuries were redressable. Del Monte, 570

F.3d at 325. Put differently, the flaw in Fuel Petitioners’

standing arguments is not—as counsel for Fuel Petitioners

contended at oral argument, Oral Argument Transcript

74–75—that their standing arguments were sufficient

when originally filed, but that their claims have been

mooted by the passage of time. Fuel Petitioners’ standing

arguments were deficient from the start.

26a

State Petitioners, meanwhile, argue that, to the

extent that there is any doubt that they have met their

burden of demonstrating causation and redressability, this

Court should resolve it in their favor given the “special

solicitude” to which states are entitled when they seek to

protect their “quasi-sovereign interests.” Massachusetts

v. EPA, 549 U.S. 497, 518–20, 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

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

27a

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 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

28a

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 A ir Resources Board, who explains in

specific terms why the Petitioners’ claims are unlikely

to be redressed by a favorable decision by this Court.

California Add. 84–85; 96–99. Cunningham explains that

automobile manufacturers have already made a number

of public commitments regarding both vehicle pricing

and availability with respect to the remaining model

years covered by the challenged waiver; those public

commitments would tend to suggest that neither group

of Petitioners’ claims are redressable. As Cunningham

puts it, “manufacturers have likely already made pricing

decisions for” the remaining model years. California

Add. 96. Cunningham also states that “manufacturers

are already selling more qualifying vehicles in California

than the State’s standards require,” suggesting that

vacatur of the zero-emission vehicle 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

29a

economic injuries in their reply briefs.9 State Pet. Reply

Br. 3, Fuel Pet. Reply Br. 3–6.

Ultimately, the record evidence, coupled with the

filings of the EPA and intervenors, provide this Court

with no basis to conclude that Petitioners’ claims are

redressable—a necessary element of standing that

Petitioners bear the burden of establishing. As in Chamber

of Commerce, “Petitioners have offered no evidence to

the contrary, and no evidence that, if the waiver were

vacated, [automobile manufacturers] would proceed on

a different course more favorable to the petitioners.”

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

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

about the likely response” of automobile manufacturers

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

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

assumptions regarding the future actions of third-party

market participants are insufficient to establish Article

III standing.” Id. 10 Petitioners may not proclaim that their

9. This Court denied a motion by State Petitioners to file with

their reply brief new evidence regarding their standing. Per Curiam

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

concerned only State Petitioners’ allegations of economic injuries

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

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

R. 28(a)(7).

10. We conclude that Petitioners have failed to introduce

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

to the remaining model year f leets 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

30a

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.

After oral argument, Fuel Petitioners filed a motion

to supplement the record and to file a supplemental brief

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

Petitioners contend that the EPA and California raised for

the first time at oral argument the question whether Fuel

Petitioners’ claims could be redressed within the relevant

model years—an issue Fuel Petitioners argue pertains

to mootness, not the redressability of their claims. Fuel

Pet. Mot. to Supp. 1–2. Fuel Petitioners argue that they

should be allowed to file new evidence with this Court to

“address that new argument.” Fuel Pet. Mot. to Supp. 1.

We deny Fuel Petitioners’ motion to supplement

the record and to file a supplemental brief. As we have

explained, a petitioner must generally demonstrate

standing in its opening brief, either by “citing any record

evidence relevant to its claim of standing” or, where

necessary, by “appending to its filing additional affidavits

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).

31a

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

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, consider ing the relatively nar row

32a

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

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

33a

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).

To assess State Petitioners’ standing for this

constitutional claim, we again “assume that on the merits”

petitioners “would be successful.” City of Waukesha v.

EPA, 320 F.3d 228, 235, 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

34a

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. Morales-Santana,

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 Protection Clause. But Respondents

have not identified—and we do not perceive—any material

reason to treat the right to equal sovereignty claimed here

35a

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.

36a

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

37a

the Voting Rights Act. Id. The Supreme Court relied in

part on the “fundamental principle of equal sovereignty,”

id. at 544, to hold that the VRA’s coverage formula was

unconstitutional because it was founded on “decades-old

data and eradicated practices,” id. at 551, instead of being

tailored to “current conditions,” id. at 557. The Court did

not outright reject the coverage formula for treating states

differently; instead, it held that the formula’s “disparate

geographic coverage” was not “sufficiently related to

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

Austin, 557 U.S. at 203).

State Petitioners do not ask us to apply Shelby

County’s test that a statute’s “disparate geographic

coverage” must be “sufficiently related to the problem that

it targets.” State Pet. Reply Br. 13 (“Shelby County never

suggested this test applies in other contexts.”). Indeed,

they forfeited any argument that the waiver here fails

Shelby County’s “sufficiently related” test by raising that

argument for the first time in their reply brief. State Pet.

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

County to argue that the equal sovereignty principle

operates as a categorical bar on Congress’s Commerce

Clause authority—that is, that the principle prohibits

Congress from enacting Commerce Clause legislation

that leaves some states with more sovereign authority

than others, regardless of Congress’s reasons for doing

so. State Pet. Br. 24–25, 28–29 (“Section 209(b) violates

the equal-sovereignty doctrine by allowing California to

exercise sovereign authority that § 209(a) takes from every

other State.”); State Pet. Reply Br. 10, 12.13

13. State Petitioners half-heartedly suggest that “Congress

arguably complies with the equal-sovereignty doctrine when it

38a

For several reasons, Shelby County does not

support State Petitioners’ request that we apply the

equal sovereignty principle as a categorical limit on

Congress’s authority over interstate commerce. First,

the central debate in Shelby County was the scope of

Congress’s power to enforce the Fifteenth Amendment

“by appropriate legislation.” 570 U.S. at 536 (quoting U.S.

Const. amend. XV). The Court used equal sovereignty

as a background principle in applying that phrase. Id.

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

their brief to us, arguing that Shelby County means that

“in deciding whether such legislation was ‘appropriate,’

courts must consult the background principle of equal

sovereignty.” State Pet. Br. 24.

But unlike the Fifteenth Amendment, Congress’s

Commerce Clause power is not limited to “appropriate

legislation.” The Commerce Clause instead declares

unconditionally that Congress has the power “to regulate

commerce with foreign nations, among states, and with

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

Supreme Court has explained, the Commerce Clause is

“a grant of plenary authority to Congress,” Hodel v. Va.

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.

39a

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 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

40a

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 in the

traditionally state-dominated context of voting; it required

only that Congress show the disparate treatment is

41a

“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 a new state to give up

42a

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

43a

power—it enacted “legislation intended as a regulation

of commerce,” because to do that would be acting “within

the sphere of the plain power of Congress.” 221 U.S. at

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

229–30, 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,

44a

because the Constitution does impose certain equalitybased limitations on other Article I powers. For example,

the text of Article I, Section 8 states that laws concerning

bankruptcy, naturalization, and duties shall be “uniform.”

See U.S. Const. art. I, § 8, cl. 1, cl. 4. Similarly, Article

I, Section 9 prohibits “[p]reference . . . given by any

Regulation of Commerce or Revenue to the Ports of one

State over those of another.” U.S. Const. art. I, § 9, cl. 6.

State Petitioners argue that these textual provisions do

not suggest the absence of a general equal sovereignty

limit on Article I. As they point out, these provisions speak

only to whether Congress can treat states differently

when Congress itself does the legislating, not whether

Congress can allow some but not other states to exercise

the sovereign authority to legislate on an issue. That is, the

provisions guarantee the states equal treatment for only

specific subjects rather than equal sovereignty for only

those subjects. The key for present purposes, however,

is that even though the Founders plainly knew how to

include equality-based protections for states in Article I

when they wished to, they did not include any mention of

State Petitioners’ broad equal sovereignty principle. The

fact that some constitutional clauses explicitly contain an

equality-based guarantee therefore supports a negative

inference—though perhaps only a mild one—that the

Commerce Clause is not so constrained.

There are, of course, “constitutional doctrines

that are not spelled out in the Constitution but are

nevertheless implicit in its structure and supported by

historical practice,” such as the doctrine of state sovereign

immunity. Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485,

45a

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 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

46a

people immediately”). For example, New Jersey delegate

William Paterson used the concept of “equal sovereignty”

to support his argument for a single legislative chamber

with an equal vote for each state. Wesberry, 376 U.S. at 11

(citing 3 The Records of the Federal Convention of 1787,

at 251 (Max Farrand ed., 1911)). Eventually, these debates

led to the Great Compromise, which established two forms

of equality central to Article I: “equal sovereignty” in

the Senate in the form of equal representation for each

state and equal representation for each voter in the

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

Const. art. I, §§ 2, 3; see also The Federalist No. 39, at

255 (James Madison) (Jacob E. Cooke ed., 1961). The

Founders’ preoccupation with the manner and extent of

state equality under the Constitution also appears to have

yielded the specific equality-based limits on Congress’s

legislative authority discussed above. If the Constitution

also contained State Petitioners’ fundamental yet unstated

limit on Congress’s authority to legislate, one would expect

ample historical evidence of that limit at the founding.

State Petitioners point us to none. Cf. New York, 505 U.S.

at 163–66.

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,

47a

cl. 3. That is, Congress has the power to grant individual

states greater authority to, for example, assess taxes and

even enter compacts with foreign powers—indisputably

elements of “sovereignty”—without extending the same

authority to other states. See Wheeling, P. & C. Transp.

Co. v. City of Wheeling, 99 U.S. 273, 283, 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

48a

that would render federal legislation unconstitutional if

it treated states differently. State. Pet. Br. 18; State Pet.

Reply Br. 12 (“At the founding, the law of nations entitled

all sovereigns to perfect equality.” (internal quotation

marks omitted)). That argument is unpersuasive.

International law contained no analog for the relation in

our constitutional system between the federal government

and the states, and so it would be surprising if the law of

nations dictated limits on Congress’s authority in relation

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

effectively explained that the Constitution’s Supremacy

Clause defeats State Petitioners’ reasoning. In Gibbons,

the Court held that while states may have equal sovereign

authority to regulate commerce in the absence of federal

action, that authority is “subjected . . . to the superior

power of Congress” when Congress acts. 22 U.S. at 70.

Indeed, the Gibbons Court cited the very same law of

nations principles that State Petitioners rely on, but only

to describe the relationship between the states when

Congress has not acted pursuant to its commerce power.

Id. at 69–70. No case since Gibbons has said otherwise.

The nature and extent of equality between the states

has been a central debate throughout our country’s

history, from the founding to the admission of new

states and beyond. But State Petitioners point us to

no meaningful support for their novel request to apply

the equal sovereignty principle as a categorical limit on

Congress’s power to regulate interstate commerce. The

First and Third Circuits—the only appellate courts to

have considered similar arguments—have found Shelby

County’s discussion of the equal sovereignty principle

inapplicable to Commerce Clause and Spending Clause

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

49a

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 because State Petitioners

present no argument that Section 209(b) or the waiver

at issue cannot survive that review, we reject their

constitutional challenge.

St at e Pet it ioner s’ r eque st t o set a side t he

Administrator’s decision on these grounds is denied.

So ordered.

50a

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.

51a

DATES: P

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