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 a Writ of Certiorari to the

United States Court of A ppeals for the

District of Columbia Circuit

BRIEF FOR AMICUS CURIAE

CONSERVAMERICA IN SUPPORT

OF PETITIONERS

Todd Johnson

ConservA merica

1455 Pennsylvania Avenue,

N.W., Suite 400

Washington, D.C. 20001

(202) 664-9297

John A. Sheehan

Counsel of Record

Brent Fewell

Earth and Water Law, LLC

1455 Pennsylvania Avenue,

N.W., Suite 400

Washington, D.C. 20001

(301) 980-5032

john.sheehan@

earthandwatergroup.com

Counsel for Amicus Curiae

117032

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Electric Vehicles Do Not Provide An

Advantage In Full Lifecycle Greenhouse

Gas Emissions A nd Cannot Justi f y

Granting California’s Waiver . . . . . . . . . . . . . . . . 3

II. A Rapid Switch To Electric Vehicles May

Cause Other Detrimental Environmental

Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

TABLE OF CITED AUTHORITIES

Page

Statutes

42 U.S.C. § 7543(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities

Guelfo, J.L., Ferguson, P.L., Beck, J. et al. Lithiumion battery components are at the nexus

of sustainable energy and environmental

release of per- and polyfluoroalkyl substances.

July 8, 2024, Nat Commun 15, 5548 (2024).

https://doi.org/10.1038/s41467-024-49753-5 . . . . . . . . 8

Heywood, J., MacKenzie, D. (2015). “On the

Road Toward 2050: Potential for Substantial

Reduction in Light-Duty Vehicle Energy

Use an d G reenhouse Ga s Emissions,”

Massachusetts Institute of Technolog y.

http://web.mit.edu/sloan-auto-lab/ research/

beforeh2/files/On-the-Road-toward-2050.pdf. . . . . . . 5

McKinsey Consulting “Lithium and cobalt: A

tale of two commodities”; June 2018 Report

ht t p s: // w w w. mck i n s ey.c om / i ndu st r ie s /

metals-and- mining/our-insights/lithium-andcobalt-a-tale-of-two-commodities. . . . . . . . . . . . . . 7, 8

National Academy of Sciences (NAS), Assessment

of Technologies for Improving Light-Duty

Vehicle Fuel Economy—2025-2035 (2021

publication copy), NAS p. 13-416. . . . . . . . . . . . . . . . . 5

iii

Cited Authorities

Page

Steffen Mueller, High Octane Low Carbon

Fu e l s : T h e B r i d g e t o Im p r o v e B o t h

Gasoline and Electric Vehicles (Mar. 22,

2021), https://erc.uic.edu/wp content/uploads/

sites/633/2021/03/UIC-Marginal-EV-HOFAnalysis-DRAFT-3_22_2021_UPDATE.pdf. . . 4, 6, 7

T he G u a r d i a n , 18 D e c 2 019 0 3 . 0 0 E S T

“How the Race for Cobalt Risks Turning it

From Miracle Metal to Deadly Chemical” . . . . . . . . 8

Todd Johnston, “Slow Down: The Case for

T e c h n o l o g y Ne u t r a l T r a n s p o r t a t i o n

P o l i c y ”, C o n s e r vA m e r i c a ( D e c . 1 0 ,

2 0 2 0), https: //st at ic1. squa respace.com /

static/5d0c9cc5b4fb470001e12e6d/t/5fd158099

9fe644e8a504a54/1607555090612/CA+Tech+

Neutral+Paper+-+12.20+%281%29.pdf . . . . . . . . 4, 6

1

INTEREST OF AMICUS CURIAE

ConservAmerica Inc. is a 501(c)(3) organization

focused on addressing conservation, environmental, and

energy challenges through market-based solutions.1 Our

core mission is to advocate for sound laws and public

policies that produce clean air, clean and safe water, and

healthy public lands. ConservAmerica promotes wise

management of our nation’s public lands and resources

through responsible stewardship, rule of law, and holding

polluters responsible for environmental pollution and

degradation.

ConservAmerica promotes sound energy policies

based on sound science and an understanding that

policies that too narrowly focus on one goal or one market

may not make sense or may be counterproductive when

viewed and analyzed from a holistic environmental

perspective. The most efficient way to achieve the nation’s

environmental goals is through policies that encourage

competitive markets, private investment, and expanded

trade. ConservAmerica opposes policies and approaches

that impose centralized regulations that place an undue

burden on the economy without delivering measurable

environmental benefits.

1. Pursuant to Supreme Court Rule 37.2, amicus curiae

states that more than 10 days before the filing of this brief,

counsel of record before this Court were notified of the intention

of amicus curiae to file an amicus brief and received said notice.

Pursuant Rule 37.6, amicus curiae states that no part of this brief

was authored by counsel for any party and no person or entity

other than amicus curiae made any monetary contribution to the

preparation and submission of the brief.

2

SUMMARY OF ARGUMENT

The United States Environmental Protection Agency

(“EPA”) and the State of California have worked in concert

to promote a policy to engineer a wholesale shift in the

nation’s vehicle fleet from traditional gas-powered vehicles

to electric vehicles. ConservAmerica submits this amicus

curiae brief to urge the Court to recognize the negative

impacts of EPA’s decision waiving federal preemption

of two California regulations under the Clean Air Act.

Allowing EPA’s decision to stand will have serious and

widespread implications for energy policy, environmental

conditions, and the economy. Left undisturbed, EPA’s

order will allow California to force a statewide mandate

requiring all vehicles to be electric vehicles.

EPA’s order fails to recognize that when the full

lifecycle of a vehicle and its energy source is taken

into account, including GHG emissions during the fuel

production, manufacturing, operation, and disposal stages,

advanced internal combustion engine vehicles (ICEVs) and

hybrid electric vehicles (HEVs) are capable of achieving

comparable or better reductions in GHG emissions as

similarly equipped, full battery electric vehicles (BEVs or

EVs). EPA’s decision supporting the California waiver is

based upon the assumption that the rapid move to electric

vehicles will account for greater emission reductions, but

that assumption is flawed, not supported by the record and

not grounded in fact.

In addition to its concerns about the impacts to the

environment and energy policy of the 2022 decision by EPA

waiving federal preemption of two California regulations,

ConservAmerica also supports the arguments submitted

3

by Petitioners recognizing that EPA overstepped the

authority granted to it under Section 209(b) of the Clean

Air Act and upset the proper balance between federal

and state governments. ConservAmerica recognizes the

principles of federalism and supports the rights of states

as partners in the federal scheme to carry out important

goals Congress has enacted.

ARGUMENT

I.

Electric Vehicles Do Not Provide An Advantage

In Full Lifecycle Greenhouse Gas Emissions And

Cannot Justify Granting California’s Waiver.

As part of the basis for the 209(b) waiver, California

contended that it “needs” the authority to regulate vehicle

greenhouse gas emissions because the regulations it

seeks to adopt are necessary to meet its climate change

related goals. However, the available science does not

show that the rapid increase in the use of electric vehicles

in place of gas-powered vehicles – the goal of California’s

“zero-emission” vehicle mandate – is “needed” to reduce

California’s greenhouse gas emissions. The emerging

scientific consensus is that even a wholesale shift to

electric vehicles will not meaningly impact greenhouse gas

emissions in the state of California when the full lifecycle

of an electric vehicle and its energy source is taken into

account. A full life cycle analysis takes into account

GHG emissions during fuel production, manufacturing,

operation, and disposal stages. Moreover, advanced

internal combustion engine vehicles and hybrid electric

vehicles are capable of achieving comparable or better

reductions in GHG emissions as similarly equipped, full

4

battery electric vehicles. 2 Thus, the waiver is not “needed”

“to meet compelling and extraordinary conditions” as

required by 42 U.S.C. § 7543(b)(1)(B).

ConservAmerica recognizes that fully electric vehicles

will likely play an important role in reducing emissions

and fighting climate change but cautions that a rapid,

wholesale move away from gasoline powered vehicles

to fully electric vehicles may not achieve the benefits

frequently touted. 3 In the short term, gasoline powered

vehicles achieve similar reductions to electric vehicles

when the impacts of the additional emissions that occur

in the production of electric vehicles is considered, as is

discussed below. Additionally, picking one technology

now over all other technologies forecloses the possibility

of more technological breakthroughs – through efficiency

and fuels – that could have significant long-term impacts.

It is important to recognize exactly what electric

vehicles are and what emissions are associated with both

their use and their production. California’s use of the term

“zero-emission vehicle” is a misnomer, and this vernacular

has been criticized by many including the National

Academy of Sciences, as “incentivizing the deployment

2. Steffen Mueller, High Octane Low Carbon Fuels: The

Bridge to Improve Both Gasoline and Electric Vehicles, (Mar. 22,

2021), https://erc.uic.edu/wp content/uploads/sites/633/2021/03/UICMarginal-EV-HOF-Analysis-DRAFT-3_22_2021_UPDATE.pdf.

3. See Todd Johnst on, “ Slow Dow n: T he Case for

Technology Neutral Transportation Policy”, ConservAmerica

(Dec. 10, 2020), https://static1.squarespace.com/static/5d0c9cc

5b4fb470001e12e6d/t/5fd1580999fe644e8a504a54/1607555090612/

CA+Tech+Neutral+Paper+-+12.20+%281%29.pdf (reviewing

multiple studies).

5

of zero-emission vehicles but misrepresenting the actual

carbon emissions.”4 Indeed, while electric vehicles may

have zero tailpipe emissions, the activities necessary to

produce electric vehicles generate significant greenhouse

gas emission over their full lifecycle – meaning the

emissions generated from mining metal ores to vehicle

salvage. 5

A full lifecycle emissions-based analysis approach

requires reframing the comparison between gasoline

and electric vehicles. See, NAS report, p. 12-385. As

renewable resources supply only 20 percent of the

country’s electricity needs and the remaining 80 percent

are generated by fossil fuels such as coal and natural gas,

the comparison is really between burning gasoline or a mix

of coal and natural gas to move the vehicle. (See Mueller;

Mackenzie). This comparison reveals that the proposed

rapid electrification of the transportation sector would

not in fact significantly reduce GHG emissions but instead

would shift and impose significant costs and impacts to

other sources.

Once full life cycle emissions are considered, it

becomes apparent that increasing the number of electric

vehicles and reducing the number of internal combustion

4. See, National Academy of Sciences (NAS), Assessment

of Technologies for Improving Light-Duty Vehicle Fuel

Economy—2025-2035 (2021 publication copy), NAS p. 13-416.

5. See Id; Heywood, J., MacKenzie, D. (2015). “On the Road

Toward 2050: Potential for Substantial Reduction in LightDuty Vehicle Energy Use and Greenhouse Gas Emissions,”

Massachusetts Institute of Technology. http://web.mit.edu/sloanauto-lab/ research/beforeh2/files/On-the-Road-toward-2050.pdf.

6

vehicles cannot justify California’s claim of “need” for

independent authority to regulate vehicle greenhouse

gas emissions. The findings of multiple lifecycle analyses

by the International Energy Association, Argonne

National Labs and MIT among others have found that

hybrid vehicles emit about the same or lower levels of

carbon dioxide than electric vehicles. These studies by

unbiased experts comparing the full environmental profile

of electric vehicles versus advanced hybrids were not

adequately considered by EPA.

In fact, based on the greenhouse gas intensity of

today’s electric grid, hybrid vehicles often outperform all

other vehicle types – including electric vehicles.6 Research

into alternative fuels suggests that gasoline internal

combustion engines have the potential for even greater

reductions in greenhouse gas emissions.7 The studies show

a variety of automotive technologies and powertrains

deliver comparable emission reductions and demonstrate

the importance of taking a technology-neutral approach in

setting transportation policies to obtain the most efficient

reductions in greenhouse gas emissions.

6 . See Todd Johnst on, “ Slow Dow n: T he Case for

Technology Neutral Transportation Policy”, ConservAmerica

(Dec. 10, 2020). https://static1.squarespace.com/static/5d0c9

cc5b4fb470001e12e6d/t/5fd1580999fe644e8a504a54/16075550

90612/CA+Tech+Neutral+Paper+-+12.20+%281%29.pdf

7. See Mueller. Finding that under the current electric grid

infrastructure, ethanol-based fuels outperform electric vehicles

throughout the Midwest.

7

Additionally, these studies reveal variables such as

the geographic variation of the electric grid across the

United States can have significant impacts in determining

lifecycle emissions. 8 This means that the carbon intensity

associated with charging an electric vehicle will vary

depending on where the electricity used to charge the

vehicle is generated, what time of year it is, and even

what time of day it is charged.9 Accordingly, California’s

approach is misguided.

II. A Rapid Switch To Electric Vehicles May Cause

Other Detrimental Environmental Impacts.

The electric vehicle mandate California sought did

not justify granting California a waiver because the

rapid adoption of electric vehicles will have detrimental

environmental implications that were not fully vetted by

EPA.

Evidence of the widespread environmental impacts

from meeting even the current demand for electric

vehicles can already be seen. An electric vehicle mandate

would require sharply increasing the demand for the raw

materials needed in their production which could have

detrimental global environmental impacts. Lithium and

cobalt, the two minerals essential for the manufacture

of these batteries, are found in only a limited number

of locations globally.10 More than 65 percent of global

8. See Id.

9. See Id.

10. See McKinsey Consulting “Lithium and cobalt: A tale of

two commodities”; June 2018 Report https://www.mckinsey.com/

8

production of cobalt is concentrated in the Democratic

Republic of the Congo. However, less than 10 percent

of cobalt supply occurs as a primary product, with the

remainder produced as a by-product of mining primarily

copper and nickel. Cobalt-production has created a host

of environmental problems for the nations that produce

it without laws and other protections to minimize the

impacts. Countries that produce the materials without

restrictions and protections are more likely to experience

water pollution, contaminated crops and loss of soil

fertility, and increased risks of cancer.11

China dominates the global production of lithiumion batteries and their precursor materials, especially

graphite.12 Pollution from graphite dust is damaging to

the environment and public health whether through direct

inhalation or atmospheric deposition. More pollution

results from the hydrochloric acid used to process mined

graphite into a usable form. Hydrochloric acid is highly

industries/metals-and- mining/our-insights/lithium-and-cobalta-tale-of-two-commodities.

11. See, The Guardian, 18 Dec 2019 03.00 EST “How the

Race for Cobalt Risks Turning it From Miracle Metal to Deadly

Chemical.”

12. Published on July 8, 2024, a peer-reviewed study also

recognized that toxic per- and polyfluoroalkyl substances (PFAS)

used in lithium ion batteries that are essential to the clean energy

transition present a threat to the environment and human health

as the nascent industry scales up. Guelfo, J.L., Ferguson, P.L.,

Beck, J. et al. Lithium-ion battery components are at the nexus

of sustainable energy and environmental release of per- and

polyfluoroalkyl substances. July 8, 2024, Nat Commun 15, 5548

(2024). https://doi.org/10.1038/s41467-024-49753-5

9

corrosive and can cause great environmental damage

when leaked into groundwater or streams. Besides the

localized environmental impacts due to lax standards and

enforcement, relying on countries that are potentially

unstable and adversarial for critical supply chain items

is problematic for both national and economic security.

In summary, the full lifecycle environmental impacts

from electric vehicle production should have been

considered by EPA. California’s zero-emissions vehicle

policy cannot be justified on environmental grounds.

California’s reduced tailpipe emissions do not justify the

widespread global environmental and societal impacts

that will likely result if EPA’s federal preemption waiver

for California is upheld.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Todd Johnson

John A. Sheehan

ConservA merica

Counsel of Record

1455 Pennsylvania Avenue,

Brent Fewell

N.W., Suite 400

Earth and Water Law, LLC

Washington, D.C. 20001

1455 Pennsylvania Avenue,

(202) 664-9297

N.W., Suite 400

Washington, D.C. 20001

(301) 980-5032

john.sheehan@

earthandwatergroup.com

Counsel for Amicus Curiae