Amicus Curiae Brief — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.

No. 24-7

In the Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE TEXAS OIL & GAS

ASSOCIATION, LOUISIANA MID-CONTINENT OIL

& GAS ASSOCIATION, THE PETROLEUM

ALLIANCE OF OKLAHOMA, TEXAS

INDEPENDENT PRODUCERS AND ROYALTY

OWNERS ASSOCIATION, AND TEXAS

ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF FUEL PETITIONERS

August 7, 2024

JAMES K. VINES

Counsel of Record

SAMUEL P. FUNK

EVAN S. ROTHEY

SIMS|FUNK, PLC

3102 West End Ave., #1100

Nashville, TN 37203

(615) 292-9335

jvines@simsfunk.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

Amici write in support of Fuel Petitioners’ second

question presented:

Whether EPA’s preemption waiver for

California’s greenhouse-gas emission

standards and zero emission-vehicle

mandate is unlawful.

Because the waiver rule’s regulatory objective is one

of major national policy and EPA’s written

explanation for the rule fails to demonstrate clear

statutory authority to reach that major national policy

question, Amici’s brief, below, adds argument that the

mandate violates the major questions doctrine.

ii

TABLE OF CONTENTS

Page

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

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

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST ....................................1

SUMMARY OF THE ARGUMENT ............................6

ARGUMENT ...............................................................7

I. Because EPA’s preemption waiver expressly

targeted the oil and gas industry, Fuel Petitioners

have standing to challenge that action. ..................7

II. The Court should strike down EPA’s agency

action under the major questions doctrine because

Congress did not clearly state that EPA may force

a nationwide shift away from fossil fuels via

regulatory delegation to California. ......................11

A.

This is a major questions case. .................11

B.

Congress did not hide an elephant-sized

mandate for forced vehicle electrification (at

California’s bidding) in the Clean Air Act’s

preemption-waiver mousehole. ..........................14

C. This case presents an appropriate vehicle to

address EPA’s expansive view of the Clean Air

Act’s preemption waiver. ...................................19

CONCLUSION ..........................................................20

iii

TABLE OF AUTHORITIES

Cases

Chamber of Commerce v. EPA,

642 F.3d 192 (D.C. Cir. 2011) .........................19

Energy Future Coalition v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ...........................8

Massachusetts v. EPA,

549 U.S. 497 (2007).........................................11

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014).........................................14

West Virginia v. EPA,

597 U.S. 697 (2022)............. 7, 11, 12, 13, 14, 17

Statutes

42 U.S.C. § 7507 ...................................................12

42 U.S.C. § 7543 ......................... 6, 7, 13, 14–16, 18

Regulations

73 Fed. Reg. 12,156 (Mar. 6, 2008) ......................18

74 Fed. Reg. 32,755 (July 8, 2009) ......................18

78 Fed. Reg. 2,112 (Jan. 9, 2013) ........................18

84 Fed. Reg. 51,310 (Sept. 27, 2019) ...................18

87 Fed. Reg. 14,332 (Mar. 14, 2022) .......... 9, 12, 18

Other Authorities

81 Stat. 485 (1967) ...............................................16

iv

Other Authorities—Continued

California Air Resources Board, States that have

Adopted California’s Vehicle Regulations (June

2024), https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-carsprogram/states-have-adopted-californiasvehicle-regulations .........................................12

Exec. Order No. 13,990,

3 C.F.R. § 13990 (2022) .............................. 8, 19

Exec. Order No. 14,037,

3 C.F.R. § 14037 (2022) ....................................8

H.R 8635, 116th Cong. § 2 (2020),

https://www.congress.gov/bill/116thcongress/house-bill/8635 .................................18

H.R. 2767, 116th Cong. § 1 (2019),

https://www.congress.gov/bill/116thcongress/house-bill/2764 .................................18

Press Release, Gavin Newsom, Governor, State of

California, Governor Newsom Statement on

Biden Administration’s Restoration of

California’s Clean Car Waiver (March 9,

2022),

https://www.gov.ca.gov/2022/03/09/governornewsom-statement-on-biden-administrationsrestoration-of-californias-clean-car-waiver/ ..10

v

Other Authorities—Continued

Press Release, U.S. Environmental Protection

Agency, EPA Reconsiders Previous

Administration’s Withdrawal of California’s

Waiver to Enforce Greenhouse Gas Standards

for Cars and Light Trucks (April 26, 2021),

https://www.epa.gov/newsreleases/epareconsiders-previous-administrationswithdrawal-californias-waiver-enforce ............9

S. 1487, 116th Cong. §1 (2019),

https://www.congress.gov/bill/116thcongress/senate-bill/1487 ...............................18

S. 3664, 115th Cong. § 2 (2018),

https://www.congress.gov/bill/115thcongress/senate-bill/3664 ...............................18

S. 4823, 116th Cong. § 2 (2020),

https://www.congress.gov/bill/116thcongress/senate-bill/4823 ...............................18

1

STATEMENT OF INTEREST1

Amici are statewide trade associations from Texas,

Oklahoma, and Louisiana, representing the oil and

gas industry and related manufacturing industries in

their respective states. These industries are the

foundational economic drivers for Texas, Oklahoma,

and Louisiana. The economies and public welfare of

these states depend on the immediate and long-term

future of these industries. Amici, and the industry

members they represent, are squarely in the

crosshairs of the Administration’s attack on fossil

fuels in the transportation sector and other key

economic sectors. EPA’s preemption waiver, here, is a

critical step in the Administration’s multi-agency

effort to cripple the oil and gas industry.

1. The Texas Oil & Gas Association (TXOGA)

represents every facet of the Texas oil and gas

industry, including small independent businesses and

major producers. Collectively, TXOGA’s membership

produces roughly 90% of Texas’ crude oil and natural

gas and operates the vast majority of the state’s

refineries and pipelines. In 2023 alone, the Texas oil

Pursuant to Supreme Court Rule 37.6, Amici state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from Amici, their members, and

their counsel, made any monetary contribution toward the

preparation or submission of this brief. Pursuant to Supreme

Court Rule 37.2, Amici certify that counsel of record for all

parties received notice of the intent to file this brief at least 10

days before it was due.

1

2

and natural gas industry supported over 480,000

direct jobs and paid $26.3 billion in state and local

taxes and state royalties. In turn, Texas uses state oil

and gas revenues to fund public education,

infrastructure, first responders, and economic

stabilization programs. TXOGA and each of its

members are directly impacted by EPA’s actions in

this particular rulemaking.2 For these reasons, all of

Texas Oil & Gas Association’s member companies and

the dependent sectors of Texas’ economy are subject

to profound adverse consequences from the regulatory

actions addressed in the petition.

2. Texas Independent Producers and Royalty

Owners Association (TIPRO) is one of the country’s

largest oil-and-gas trade associations. TIPRO’s nearly

3,000 members—from small family-owned operations

to large publicly traded oil and gas producers and

royalty owners of all sizes—represent Texas’s

foundational economic driver, the oil and gas

industry. In 2023, Texas supplied 23% of all oil and

gas jobs nationwide and provided highest oil and gas

payroll in the country in 2023, totaling $59 billion.

Texas produced over 1.9 billion barrels of oil and 12.2

trillion cubic feet of natural gas in 2023, both new

records. And Texas’s oil and natural gas industry

purchased American goods and services to the tune of

$288 billion, illustrating how deeply the oil and gas

2 Texas Oil & Gas Association, 2023 Annual Energy & Economic

Impact Report (Jan. 30, 2024), https://www.txoga.org/2023eeir/

3

industry is woven into the fabric of the American

economy.3 For these reasons, all of Texas Independent

Producers and Royalty Owners Association’s member

companies and individual members, and the

dependent sectors of Texas’ economy, are subject to

profound adverse consequences from the regulatory

actions addressed in the petition.

3. Texas Association of Manufacturers (TAM)

actively represents the interests of more than 600

member companies. Texan manufacturers account for

more than 11.2% of the total output in Texas—$269

billion in 2022—and employ almost 925,000 Texans in

jobs that pay more than $105,699 annually on

average. And for each manufacturing job, five

additional jobs are created in a community. For more

than twenty years, Texas has remained the number

one exporting state in the United States for

manufactured goods. As noted by the U.S.

Department of Energy, “refined products made from

oil & natural gas make the manufacturing of over

6000 everyday products and high-tech devices

possible.” These products include everything from

contact lenses and hearing aids to cell phones and

laptops.4 For these reasons, all of Texas Association of

3 Texas Independent Producers and Royalty Owners Association,

2024 State of Energy Report 3–4 (2024), https://tipro.org/tiproenergy-report-2024/.

4 Texas Association of Manufacturers, Manufacturing Matters,

https://manufacturetexas.org/manufacturing-matters; National

Association of Manufacturers, Manufacturing in the United

States: Texas, https://nam.org/manufacturing-in-the-united-

4

Manufacturer’s member companies and the

dependent sectors of Texas’ economy are subject to

profound adverse consequences from the regulatory

actions addressed in the petition.

4. Louisiana

Mid-Continent

Oil

&

Gas

Association (LMOGA) represents the oil and gas

industry in the second-largest oil producing state and

fourth-largest gas producing state. In 2019, Louisiana

supported the production of 738 million barrels of

crude oil and liquid condensate, 3.81 trillion cubic feet

of dry (or pipeline quality) natural gas, and 102.4

million barrels of natural gas plant liquids—a firstpoint-of-sale total value of $55.5 billion. The

Louisiana oil and gas industry provided $73.0 billion

dollars of direct, indirect, and related state income.

And state and local tax revenues from the industry

provided $4.5 billion to the state economy throughout

the supply chain. A total of 249,800 private sector

employees received wages or salaries in 2019

supported by oil and gas activity.5 For these reasons,

all of Louisiana Mid-Continent Oil & Gas

Association’s member companies and the dependent

states/regions/texas/; U.S. Department of Energy, Products

Made

from

Oil

and

Natural

Gas

(Nov.

2019),

https://www.energy.gov/sites/prod/files/2019/11/f68/Products%2

0Made%20From%20Oil%20and%20Natural%20Gas%20Infogra

phic.pdf.

5 ICF International, Inc., The Economic Impact of the Oil and

Natural Gas Industry in Louisiana (Oct., 5, 2020),

https://www.lmoga.com/assets/uploads/documents/LMOGA-ICFLouisiana-Economic-Impact-Report-10.2020.pdf.

5

sectors of Louisiana’s economy are subject to profound

adverse consequences from the regulatory actions

addressed in the petition.

5. The Petroleum Alliance of Oklahoma (OK

Petro) represents the oil and gas industry in the

Nation’s fourth-largest oil producing state and fifthlargest gas producing state. In 2022, Oklahoma’s oil

and gas industry produced more than 1.8 billion

barrels in proved crude oil reserves and more than 36

trillion cubic feet of natural gas reserves, directly

contributing $55.7 billion to state GDP in 2023. In

turn, Oklahoma’s oil and gas industry provided $30.7

billion in income to Oklahomans, and its total impact

accounted for 22% of statewide economic activity. The

oil and natural gas industry is Oklahoma’s largest

private-sector employer and is its largest taxpayer,

contributing a record $2.9 billion in total taxes in

2023. And beyond taxes, state royalty payments

exceeded $1.9 billion. The oil and gas industry

provides Oklahoma’s only major source of earmarked

funding for education and county roads and bridges,

totaling $288 million and $177 million, respectively,

in 2023.6 For these reasons, all of The Petroleum

U.S. Energy Information Administration, Oklahoma State

Energy

Profile

(July

18,

2024),

https://www.eia.gov/state/print.php?sid=OK; Oklahoma Energy

Resources Board, Oklahoma Oil & Natural Gas: Economic

Impact (2023), https://oerb.com/ECONOMIC-IMPACT/; OERB,

Oklahoma Oil & Natural Gas: 2023 Economic Impact Update

(Mar.

2024),

https://oerb.com/wpcontent/uploads/2024/03/Economic-Impact-Full-Report.pdf;

6

6

Alliance of Oklahoma’s member companies and the

dependent sectors of Oklahoma’s economy are subject

to profound adverse consequences from the regulatory

actions addressed in the petition.

SUMMARY OF THE ARGUMENT

1. The per curiam panel opinion of the Court of

Appeals for the D.C. Circuit wrongly held that Fuel

Petitioners lack standing to challenge EPA’s grant of

a preemption waiver under Section 209(b) of the Clean

Air Act to California’s whole “Advanced Clean Cars”

(ACC) program. Federal and California authorities

have made clear that reducing use of fossil fuels in

vehicles, potentially down to zero, is the objective of

the EPA waiver and California’s ACC program. There

can be no question that the producers, refiners, and

marketers of these same fuels have standing to

challenge a rule aimed directly at them.

2. EPA’s California Waiver Rule is one of the key

weapons in the Administration’s existential attack on

the oil and gas sector. As Fuel Petitioners

demonstrate, EPA’s expansive preemption waiver

grant misconstrues Section 209(b) of the Clean Air

Act. Pet. Cert. 26–33. Amici respectfully urge the

Court to grant Petitioner’s request for certiorari and

Mark C. Snead et al., Oklahoma’s Oil and Gas Economy (2022),

http://oerb.com/wp-content/uploads/2022/02/RegTrk-OK-OilGas-Final-Draft-20220201.pdf.

7

reverse EPA’s California Waiver Rule on those

grounds.

3. EPA’s overreach here also runs afoul of the

Court’s holding in West Virginia v. EPA, in which the

Court struck down EPA’s non-legislatively authorized

attempt to completely transform the nation’s electric

power generation fleet. 597 U.S. 697 (2022). This case

is one more instance of EPA imagining sweeping

regulatory authority where none exists, wielding the

Clean Air Act in an attempt to create seismic shifts in

American markets (with devastating economic and

societal ramifications). By abdicating regulatory

authority to the State of California through the Clean

Air Act’s narrow preemption waiver, Section 209(b),

EPA’s conduct here is far worse than its efforts

targeting

electric

power

generation.

Amici

respectfully request that the Court grant certiorari

review and rule that EPA’s preemption waiver grant

in this case violates the major questions doctrine.

ARGUMENT

I. Because EPA’s preemption waiver expressly

targeted the oil and gas industry, Fuel

Petitioners have standing to challenge that

action.

EPA admittedly has targeted the oil and gas

industry with a raft of rulemakings in a concerted

effort to force a change from fossil fuels and other

liquid-fuel propulsion to electric vehicles. See, e.g.,

8

Exec. Order No. 13,990, 3 C.F.R. § 13990 (2022); Exec.

Order No. 14,037, 3 C.F.R. § 14037 (2022).7 This

particular rulemaking—EPA’s about-face grant of a

preemption waiver to the whole of California’s

Advanced Clean Car program—is one such attack on

the industry. As a result, Fuel Petitioners have

standing to challenge the agency action—“remov[ing]

a regulatory hurdle” to the use of Fuel Petitioners’

products is enough to establish redressability. See

Energy Future Coalition v. EPA, 793 F.3d 141, 144

(D.C. Cir. 2015) (Kavanaugh, J.).

There is little question that nationwide reduction

of the use of fossil fuels in vehicles, eventually down

to zero, is the objective of EPA’s wholesale preemption

waiver for California’s ACC program. Leaders of both

EPA and California have said as much. EPA

Administrator Michael Regan, citing his belief in

“California’s long-standing statutory authority to

lead” (seemingly an admission of EPA’s abdication to

the Golden State), proceeded to roll back EPA’s prior

denial of a preemption waiver at the President’s

direction. Press Release, U.S. Environmental

Protection Agency, EPA Reconsiders Previous

Administration’s Withdrawal of California’s Waiver to

As part of the coordinated agency strategy, EPA and the

National Highway Traffic Safety Administration have also taken

other agency actions, which are currently 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).

7

9

Enforce Greenhouse Gas Standards for Cars and

Light

Trucks

(April

26,

2021),

https://www.epa.gov/newsreleases/epa-reconsidersprevious-administrations-withdrawal-californiaswaiver-enforce (emphasis added). EPA has continued

to note that the California Air Resources Board’s

(CARB) 2012 waiver request attributed certain

“benefits” of its ACC program “not to vehicle

emissions reductions specifically, but to increased

electricity and hydrogen use that would be more than

offset by decreased gasoline production and refinery

emissions.” 87 Fed. Reg. 14,332, 14,336 (Mar. 14,

2022) (emphasis added) (citing CARB Request for

Waiver of Preemption for Low Emission Vehicle and

Zero Emission Vehicle Regulations (“Advance Clean

Car Program”) (2012 Waiver Request), EPA-HQOAR-2012-0562-0004, 1, 6 (Aug. 30, 2012)). Put

differently, one of the express goals is for “net

upstream emissions” to be “reduced through the

increased use of electricity and concomitant

reductions in fuel production.” Id. (emphasis added)

(citing 2012 Waiver Request, at 15–16).

Likewise, California’s Gavin Newsom touted the

ACC program’s intended goal—“to end” the country’s

“reliance on fossil fuels” and to “make a zero-emission

future a reality for all Americans.” Press Release,

Gavin Newsom, Governor, State of California,

Governor

Newsom

Statement

on

Biden

Administration’s Restoration of California’s Clean

10

Car

Waiver

(March

9,

2022),

https://www.gov.ca.gov/2022/03/09/governor-newsomstatement-on-biden-administrations-restoration-ofcalifornias-clean-car-waiver/ (emphasis added). In

short, the very purpose of EPA’s grant of a preemption

waiver was to force nationwide conversion from

liquid-fuel-powered vehicles to electric vehicles by

abdicating the decision to California.

Contrary to the lower court’s conclusion, Fuel

Petitioners (entities and associations representing

interests at all levels of the liquid fuel supply chain)

are not ancillary to EPA’s final agency action. See

App. To Pet. Cert., 29a–30a. To be sure, automakers

are also impacted by the rulemaking. The automakers

are simply the device the agencies are using to directly

undermine, and in their view hopefully eliminate, the

Fuel Petitioners’ industries and livelihoods. There can

be no question that the producers, refiners and

marketers of these fuels have standing on all grounds

to challenge a rule (among other similarly purposed

federal regulations) aimed directly at them. The

automakers involvement does not change the ultimate

target of the EPA and the California Air Resources

Board—the oil and gas industry. A “plaintiff satisfies

the redressability requirement” by showing “that a

favorable decision will relieve a discrete injury”; a

plaintiff “need not show that a favorable decision will

relieve his every injury.” Massachusetts v. EPA, 549

U.S. 497, 525 (2007). Fuel Petitioners have standing

11

to challenge this agency action which would clearly

injure them.

II. The Court should strike down EPA’s agency

action under the major questions doctrine

because Congress did not clearly state that

EPA may force a nationwide shift away from

fossil fuels via regulatory delegation to

California.

This is not the first time EPA has wielded

“unheralded power” under the Clean Air Act to

manipulate markets and disfavor a core American

industry. See West Virginia v. EPA, 597 U.S. 697

(2022). EPA now wields its narrow preemption-waiver

power under the Clean Air Act to enable California to

choke the oil and gas industry in personal, municipal,

and corporate transportation systems nationwide.

This overly aggressive interpretation of the Clean Air

Act could have devastating economic effects on the oil

and gas industry, including Amici and throughout the

states they call home. But EPA has answered this

major question of economic and political significance

without a clear congressional mandate to do so.

A. This is a major questions case.

The major questions doctrine is an established

part of the canon for judicial review of agency

rulemaking. The major questions doctrine “‘label’ . . .

took hold because it refers to an identifiable body of

law that has developed over a series of significant

cases all addressing a particular and recurring

12

problem: agencies asserting highly consequential

power beyond what Congress could reasonably be

understood to have granted.” Id. at 734.

In West Virginia, the Court observed that the

Clean Power Plan’s “point, after all, was to compel the

transfer of power generating capacity from existing

sources to wind and solar.” Id. at 714. After all, “EPA

explained that taking any of these steps would

implement a sector-wide shift in electricity production

from coal to natural gas and renewables.” Id. at 698.

Here, the “point, after all” of EPA’s preemption

waiver for California’s Advanced Clean Cars program

is to leverage California’s mandated shift from liquidfuel-powered vehicles to electric vehicles to

nationwide effect. Not only did EPA provide the

preemption waiver, it also rescinded prior rulemaking

to allow Section 177 “opt-in” states to adopt

California’s mandates. 87 Fed. Reg. 14,332 (Mar. 14,

2022); see 42 U.S.C. § 7507. And 17 States (as well as

the District of Columbia) have adopted California’s

standards, representing approximately 40% of the

new car market and the commensurate liquid fuel

products associated with those new vehicles. See id.;

California Air Resources Board, States that have

Adopted California’s Vehicle Regulations (June 2024),

https://ww2.arb.ca.gov/our-work/programs/advancedclean-cars-program/states-have-adopted-californiasvehicle-regulations.

13

As a result, Amici’s members, are not facing a mere

“shift” in their sectors; they are facing the opening

salvo in an emerging and coordinated federal and

state blockade of the use of liquid fuels in the new

vehicle market. In turn, Texas, Oklahoma, and

Louisiana are facing the start of a “highly

consequential” destruction of their foundational

economic driver, as well as their home states’ very

prosperity, derived from the oil and gas and

manufacturing industries. The fallout from this will

be felt nationwide and abroad.

“A decision of such magnitude and consequence

rests with Congress itself, or an agency acting

pursuant to a clear delegation from that

representative body.” West Virginia, 597 U.S. at 735.

So “the Government must—under the major questions

doctrine—point to ‘clear congressional authorization’

to regulate in that manner.’” Id. at 732 (quoting

Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324

(2014)). Congress did not clearly authorize EPA to

effectively abdicate nationwide regulation to

California through Section 209(b)(1)(B) of the Clean

Air Act. And Congress did not clearly authorize EPA,

and, in turn, California, to increasingly push of liquidfuel-powered vehicles out of nearly half of the

country’s new vehicle market. There is no

congressional authorization for EPA to utilize the

Clean Air Act’s authority to destroy key industrial

14

sectors and the prosperity of the millions of citizens

who depend on those sectors.

B. Congress did not hide an elephantsized mandate for forced vehicle

electrification (at California’s bidding)

in the Clean Air Act’s preemptionwaiver mousehole.

Congress must “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). “Oblique or

elliptical language, will not supply a clear statement,”

and agencies may not “seek to hide elephants in

mouseholes or rely on ‘gap filler’ provisions.” West

Virginia, 597 U.S. at 746 (Gorsuch, J., concurring).

Here, the Clean Air Act’s state regulation

prohibition and waiver provision relied on by EPA are

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

15

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.

(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. . .

(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

16

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.

42 U.S.C. § 7543(a)–(b). The preemption waiver

contemplated in this provision is generally known as

“the California waiver” because California is the only

state that had adopted standards for the control of

emissions before March 30, 1966, per Clean Air Act

Section 209(b)(1). See id.

Section 209 (formerly Section 208) joined the Clean

Air Act through the Air Quality Act of 1967. See 81

Stat. 485, 501 (1967). The preemption waiver, part of

Title II—the National Emission Standards Act—

permitted limited exceptions to EPA’s preemptive

authority to set emission standards to address

“compelling and extraordinary conditions” in the

State. See id. The National Emission Standards Act

was intended to set national standards for vehicles

with actual emissions, not for vehicles without

emissions and not to dictate or eliminate fuel sources

used in new vehicles. In 1967, when the preemption

waiver was enacted, Congress could not have

conceived of mass electrification of new vehicles. And

in any event, Congress did not enable EPA to mandate

mass electrification in an enabling statute that was

unequivocally intended to set standards for vehicles

17

with actual emissions. Likewise, Congress did not

empower EPA to abdicate a sea change away from

liquid fuels at the sole discretion of the state of

California’s policy decision. No such mandate has

since been added to the enabling statute.

The sole, clear subject of these portions of the

Clean Air Act is “standards” for the “control of

emissions.” The preemption waiver simply does not

provide a clear statement that could authorize EPA to

invert federalism principles to permit California to tilt

40% of the United States’ new car market away from

liquid-fuel propulsion and towards electrification.

Authorization for emissions standards does not

equate to authorization to, in essence, eliminate

liquid-fuel-powered vehicles. EPA must “point to

‘clear congressional authorization’ to regulate in that

manner.” West Virginia, 597 U.S. at 732 (quoting

Utility Air, 573 U.S. at 324). It cannot.

EPA’s (and California’s) decision in the absence of

clear

congressional

authority

has

economic

significance. The economic ramifications of EPA’s

broad reading, particularly on Amici and their home

states, cannot be overstated. And in addition to the

primary impacts on the oil and gas industry and

secondary impacts on state revenue from the industry,

other sectors rely on the ongoing viability of the oil

and gas industry. Various business sectors, such as

the commercial aviation industry, and the United

States military (though Amici do not presume to

18

speak for them) lean heavily on the oil and gas

industry. But EPA has ignored the cascading impacts

beyond the transportation and liquid fuel business

sectors. See 87 Fed. Reg. 14332.

EPA also overlooked the political significance of its

expansive preemption waiver. Congress did not

mandate vehicle electrification through the Clean Air

Act’s preemption waiver. Indeed, congressional

attempts to legislate federal mandates for electric

vehicles have failed at least five times.8 And for

decades, EPA itself has vacillated on the scope of the

waiver with the changing political tides that followed

presidential elections.9 This history of political

uncertainty over the very decision made by EPA (or

rather abdicated to California) in this case illustrates

the commonsense conclusion that this decision

touches on a matter of vast political significance.

Moreover, EPA’s interpretation of Section 209(b) is so

gaping that principles of federalism (reflected in

8 See, S. 3664, 115th Cong. § 2 (2018),

https://www.congress.gov/bill/115th-congress/senate-bill/3664;

S. 1487, 116th Cong. §1 (2019),

https://www.congress.gov/bill/116th-congress/senate-bill/1487;

H.R. 2767, 116th Cong. § 1 (2019),

https://www.congress.gov/bill/116th-congress/house-bill/2764;

H.R 8635, 116th Cong. § 2 (2020),

https://www.congress.gov/bill/116th-congress/house-bill/8635;

S. 4823, 116th Cong. § 2 (2020),

https://www.congress.gov/bill/116th-congress/senate-bill/4823.

9 See 73 Fed. Reg. 12,156, 12,163 (Mar. 6, 2008); 74 Fed. Reg.

32,755, 32,783 (July 8, 2009); 78 Fed. Reg. 2,112 (Jan. 9, 2013);

84 Fed. Reg. 51,310, 51,328, 51,339 (Sept. 27, 2019).

19

Section 209(a)) fall out, putting California at the helm

to the detriment of its sister states, further raising the

political stakes.

C. This case presents an appropriate

vehicle to address EPA’s expansive

view of the Clean Air Act’s preemption

waiver.

To date, EPA’s everchanging interpretations of the

Clean Air Act’s preemption waiver have escaped the

eyes of this Court. This case presents the opportunity

to review EPA’s interpretation of the Clean Air Act’s

preemption waiver at its broadest. Because this is one

of many agency actions driven by Executive Order

13,990, certiorari review (particularly under the

major questions doctrine) will provide a North Star in

related cases.

And addressing these issues now will quell

uncertainty in this agency arena and address the

urgent need for resolution on the merits. Parties have

challenged EPA’s yo-yoing preemption waiver

decisions before, only to find that the passage of time

during judicial review has stymied review of the

merits of EPA’s decisions. See, e.g., Chamber of

Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011).

Amici respectfully ask the Court to take up these

questions.

20

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari, reverse the D.C. Circuit’s

standing decision and reverse the EPA California

waiver rule for being outside of statutory authority

and in violation of the major questions doctrine.

Respectfully submitted,

JAMES K. VINES

Counsel of Record

SAMUEL P. FUNK

EVAN S. ROTHEY

SIMS|FUNK, PLC

3102 West End Ave., #1100

Nashville, TN 37203

(615) 292-9335

jvines@simsfunk.com

Counsel for Amici Curiae

Texas Oil & Gas Association, Louisiana Mid-Continent Oil & Gas Association, The Petroleum Alliance of Oklahoma, Texas

Independent Producers and

Royalty Owners Association, and Texas Association

of Manufacturers