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.,

v.

Petitioners,

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 FOR AMICUS CURIAE AMERICAN

PETROLEUM INSTITUTE IN SUPPORT OF

PETITIONERS

________________

PAUL D. CLEMENT

Counsel of Record

C. HARKER RHODES IV

NICHOLAS A. AQUART*

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

*Supervised by principals of the firm

who are members of the Virginia bar

Counsel for Amicus Curiae

August 7, 2024

TABLE OF CONTENTS

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

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

SUMMARY OF THE ARGUMENT ........................... 1

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

I.

This Court Should Grant Review And

Reverse The D.C. Circuit’s Standing

Decision ................................................................ 4

A. The D.C. Circuit Erred in Holding That

Petitioners Lacked Standing........................ 5

B. The D.C. Circuit’s Standing Decision Will

Create Confusion and Unnecessary

Litigation Burdens ..................................... 13

II. The Court Should Also Grant Review On The

Merits And Vacate EPA’s Erroneous Waiver

Decision .............................................................. 16

CONCLUSION ......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Am. Petroleum Inst. v. EPA,

No. 24-1196 (D.C. Cir. docketed June 13,

2024)................................................................... 15

Am. Petroleum Inst. v. EPA,

No. 24-1208 (D.C. Cir. docketed June 18,

2024)…………………………………………………15

Bennett v. Spear,

520 U.S. 154 (1997) ................................... 6, 9, 10

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ........................................... 11

Corner Post, Inc.

v. Bd. of Governors of the Fed. Rsrv. Sys.,

144 S.Ct. 2440 (2024) .............. 5, 6, 11, 12, 13, 15

Davis v. FEC,

554 U.S. 724 (2008) ........................................... 12

Dep’t of Com. v. New York,

588 U.S. 752 (2019) ............................. 6, 7, 10, 11

Energy Future Coal. v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ......................... 6, 7

Ford Motor Co. v. EPA,

606 F.2d 1293 (D.C. Cir. 1979).......................... 18

In re Nat’l Highway Traffic Safety Admin.,

No. 24-7001 (6th Cir. docketed July 18,

2024)................................................................... 15

Larson v. Valente,

456 U.S. 228 (1982) ....................................... 6, 13

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................... 5, 6, 7, 8, 10

iii

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................. 6, 11, 13

Motor Vehicle Mfrs. Ass’n

v. N.Y. State Dep’t of Env’t Conservation,

17 F.3d 521 (2d Cir. 1994) ................................. 18

Nat. Res. Def. Council v. NHTSA,

No. 22-1080 (D.C. Cir. argued Sept. 14,

2023)................................................................... 16

Texas v. EPA,

No. 22-1031 (D.C. Cir. argued Sept. 14,

2023)................................................................... 15

Uzuegbunam v. Preczewski,

141 S.Ct. 792 (2021) ............................................ 7

Statute

42 U.S.C. §7543 ...................................... 17, 18, 20, 21

Regulations

84 Fed. Reg. 51,310 (Sept. 27, 2019) ........................ 19

87 Fed. Reg. 14,332 (Mar. 14, 2022) .................... 7, 20

89 Fed. Reg. 27,842 (Apr. 18, 2024) ................... 15, 16

Other Authorities

H.R. Rep. No. 90-728 (1967) ..................................... 18

State of California, Advanced Clean Cars Waiver

Request 7-9 (May 2012),

https://tinyurl.com/3ca8mf7s............................... 7

STATEMENT OF INTEREST 1

The American Petroleum Institute (“API”) is the

national trade association for America’s oil and

natural gas industry. API has hundreds of members

involved in all segments of the industry, including

companies that produce, process, and distribute oil

and natural gas products, as well as companies that

support the oil and natural gas sector. With over 30

active chapters, API harnesses its members’

experience to research and advocate for sound

approaches to the production and supply of energy

resources. API submits this brief to underscore the

flaws in the D.C. Circuit’s standing decision below,

which departs from settled law, threatens to create

unnecessary hurdles for a wide array of regulatory

challenges, and warrants this Court’s review. API

also urges this Court to grant review on the merits as

well and to vacate EPA’s waiver of preemption, as

EPA’s decision to grant that waiver defies the plain

language of the governing statute.

SUMMARY OF THE ARGUMENT

The net result of the decision below is that the

D.C. Circuit deflected industry’s challenge to EPA’s

decision to reverse course and green-light California’s

unprecedented efforts to regulate global climate

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.2, amicus curiae affirms that counsel of

record for all parties received timely notice of the intent to file

this brief.

2

change without even reaching the merits of the

industry challenge. That decision is plainly wrong and

plainly consequential.

Article III’s standing

requirements are straightforward, and petitioners

satisfy each element here—which is why the federal

government did not even challenge petitioners’

standing below. EPA’s decision to waive federal

preemption of California’s heightened vehicle

emissions standards causes straightforward and

obvious harm to petitioners in the fuel industry, even

though the standards are formally directed to

automakers rather than the fuel industry itself. By

forcing automakers to produce more electric vehicles,

the standards necessarily reduce sales of fuel and the

raw materials used to make that fuel. Indeed, that

effect on fuel consumption and the fuel industry is the

whole point of the rule. And both basic economics and

the government’s own administrative findings show

that vacating EPA’s waiver would be a setback for

EPA and California and provide at least some redress

for the fuel industry.

The decision below nevertheless concluded that

petitioners had not shown redressability, because they

had not submitted evidence showing precisely what

effect vacating the waiver would have on automakers’

manufacturing and pricing decisions. That decision

overcomplicates the obvious and contravenes settled

law. When a government regulation is imposed with

a stated intent to reduce consumption of a particular

industry’s products, it does not take expert evidence or

declarations from the directly regulated parties to

show that vacating the regulation will be a setback for

the regulators and a boon to the targeted industry—

which is why other courts have routinely found Article

3

III satisfied without demanding that plaintiffs

produce the kind of explicit evidence that the panel

below considered necessary here. Put simply, the fact

that a regulation has been designed to produce a

particular effect should normally be sufficient to show

that the likely result of vacating that regulation will

be to reduce that effect, which is all that redressability

requires. It is a fair assumption that a government

regulation will at least advance its intended effect,

and an equally fair assumption that vacating the rule

will frustrate the government’s efforts and be a boon

to those seeking to avoid or minimize the

government’s intended effect. By demanding more,

the decision below conflicts both with this Court’s

precedent and with decisions from other circuits.

That error should not escape this Court’s review.

Leaving the decision below in place threatens to create

unnecessary hazards for future challenges to agency

action. At best, it will drive parties to hire

redressability experts whose testimony should be

unnecessary, and encourage burdensome litigation of

threshold redressability issues that should be

straightforward. And at worst, the decision below may

even in some cases entirely prevent judicial review of

regulations that by their terms apply only to certain

parties but whose effects fall heavily on others.

Regulatory challenges are routinely brought by

parties that are substantially affected by agency

action even though they are not themselves formally

regulated by that action, and redressability in those

challenges should normally speak for itself. But if the

decision below goes unreviewed, it will create perverse

incentives for proponents of regulatory actions to

contest redressability even where redressability is just

4

the flip side of what the government purports to

accomplish with its regulation—which will in turn

encourage litigants to file unnecessary affidavits, and

increase the cost and burden of litigation for all

involved. Those adverse effects on future regulatory

challenges, especially in the D.C. Circuit, warrant

further review.

This Court should also review the merits, rather

than invite the court below to substitute a mootness

ruling for its misguided standing ruling. Given that

the challenged California standards are in effect only

through model year 2025, granting review of the

merits now may be the only way to ensure that any

court reaches the substance of petitioners’ challenge

before the waiver expires.

And that challenge

deserves this Court’s attention, as EPA’s waiver

decision rests on interpretations of the governing

statute that cannot be squared with its plain text. The

Clean Air Act authorizes EPA to waive preemption

only if California “needs” its own standards to address

a “compelling and extraordinary” problem in

California. But California’s stated problem—global

climate

change—is

hardly

limited

to

or

“extraordinary” as to California, and California cannot

“need” standards that do not meaningfully address a

global problem in any event. This Court should grant

certiorari and reverse.

ARGUMENT

I.

This Court Should Grant Review And

Reverse The D.C. Circuit’s Standing

Decision.

The standing decision below flouts both common

sense and well-settled law. If left in place, it threatens

5

at a minimum to create unnecessary confusion and

additional

litigation

burdens

for

countless

“unregulated but adversely affected parties who

traditionally have brought, and regularly still bring,”

challenges to agency rules that may have a significant

and concrete impact on their interests even if those

rules do not formally regulate their conduct. Corner

Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144

S.Ct. 2440, 2461 (2024) (Kavanaugh, J., concurring).

Further review is accordingly warranted to ensure

that the erroneous decision below will not imperil

future challenges to agency rules that achieve their

objectives by regulating third parties.

A. The D.C. Circuit Erred in Holding That

Petitioners Lacked Standing.

1. To establish Article III standing, a party

invoking federal jurisdiction must show an “injury in

fact,” a “causal connection between the injury and the

conduct complained of,” and that “the injury will be

redressed by a favorable decision.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992). The third

element, redressability, does not usually present

much ground for dispute in regulatory challenges. If

the regulation is to have any effect vis-à-vis the

petitioner, then vacating the rule will provide the

petitioner some relief. It is generally that simple.

When a plaintiff is itself regulated by a challenged

agency action, “there is ordinarily little question” that

a decision preventing or vacating that action will

redress the plaintiff’s injury. Id. at 561-62.

And as then-Judge Kavanaugh has observed, that

is equally true when an agency action formally

regulates a third party, but eliminating it “would

6

remove a regulatory hurdle” to the challenger’s

business. Energy Future Coal. v. EPA, 793 F.3d 141,

144 (D.C. Cir. 2015). That was the precise scenario

presented in Energy Future Coalition, where (as here)

fuel producers challenged an EPA regulation that was

“technically directed at vehicle manufacturers” but

whose effect was to “prohibit[] or impede[]” the use of

one of the challengers’ products. Id. In that scenario,

the challengers were “an object of the action (or

forgone action) at issue,” and so there was “‘little

question’” that they had injuries that would be

redressed by vacating the regulation. Id. (quoting

Lujan, 504 U.S. at 561-62); see Bennett v. Spear, 520

U.S. 154, 169 (1997) (recognizing that standing can

arise from an “injury produced by [the] determinative

or coercive effect” of the challenged regulation “upon

the action of someone else”); cf. Corner Post, 144 S.Ct.

at 2460 (Kavanaugh, J., concurring) (recognizing that

a “typical APA suit” will “often” involve a plaintiff

challenging “an allegedly unlawful agency rule that

regulates others but also has adverse downstream

effects on the plaintiff”).

More generally, in

establishing redressability, a petitioner can rest on

“the predictable effect of Government action on the

decisions of third parties,” without having to make any

specific evidentiary showing to substantiate those

predictable effects. Dep’t of Com. v. New York, 588

U.S. 752, 768 (2019).

A plaintiff likewise need not show that “a

favorable decision will relieve his every injury.”

Larson v. Valente, 456 U.S. 228, 243 n.15 (1982).

Instead, it is enough if prevailing will “slow or reduce”

the relevant harm, Massachusetts v. EPA, 549 U.S.

497, 525 (2007), even if by as little as “one dollar,”

7

Uzuegbunam v. Preczewski, 141 S.Ct. 792, 802 (2021).

As long as some degree of redress is “‘likely’ as opposed

to merely ‘speculative’” from a favorable judgment,

Article III redressability is satisfied. Lujan, 504 U.S.

at 561.

2. Under that settled precedent, the standing

inquiry in this case should have been straightforward.

The challenged EPA waiver empowers California to

impose standards that require automakers to produce

and deliver for sale vehicle fleets that consume less

liquid fuel.

The “predictable effect” of that

regulation—and indeed, its explicitly intended

effect—is to reduce the demand for petitioners’

products. Dep’t of Com., 588 U.S. at 768. By the same

token, vacating the waiver “would remove a regulatory

hurdle” to petitioners’ future sales, making clear that

petitioners’ injury “is redressable” even though they

are not the direct object of the challenged agency

action. Energy Future Coal., 793 F.3d at 144-45; see

Lujan, 504 U.S. at 561-62.

That conclusion is confirmed by California’s own

statements.

After all, California had already

determined that its standards would lead to

“reductions in fuel production,” 87 Fed. Reg. 14,332,

14,364 (Mar. 14, 2022) (quoting California’s 2012

Waiver Request, EPA-HQ-OAR-2012-0562-0004, at

15-16), and acknowledged that the “oil and gas

industry” would be among those “most adversely

affected” by the new standards and their resulting

“substantial reductions in demand for gasoline,”

C.A.App.801; see also State of California, Advanced

Clean Cars Waiver Request 7-9 (May 2012),

https://tinyurl.com/3ca8mf7s (noting that electric

8

vehicles can “dramatically reduce petroleum

consumption”). The California Air Resources Board’s

declarant below likewise recognized that without the

standards, “it is reasonable to expect that there would

be … additional gasoline-fueled vehicles produced and

sold during these model years to meet the market’s

demand for vehicles,” C.A.States.Interv.Mot.Add.11,

with an attendant increase in demand for liquid fuel.

California’s own representations thus demonstrate

that the state’s standards were designed to reduce the

consumption of the fuel products that petitioners

produce and sell, and that petitioners would benefit

from increased sales absent those standards. Nothing

more is required to establish redressability.

3. The D.C. Circuit’s contrary decision defies this

Court’s precedent and common sense. The panel

acknowledged that petitioners’ injuries would be

redressed “if automobile manufacturers responded to

vacatur of the waiver by producing [or] selling fewer

non-conventional [i.e., electric] vehicles or by altering

the prices of their vehicles such that fewer nonconventional vehicles—and more conventional

vehicles—were sold.” Pet.App.22a. But instead of

recognizing the obvious—that it is at least “likely,”

Lujan, 504 U.S. at 561, that a waiver designed to

mandate automakers to produce more electric vehicles

would in fact operate as intended, and that vacating

that mandate would at least retard that intended

result—the panel insisted on “record evidence” that

“manufacturers would, in fact, change course with

respect to the relevant model years if this Court were

to vacate the waiver.” Pet.App.23a. Likewise, despite

admitting that manufacturers “could change their

prices” in response to vacatur of the waiver, “which

9

may redress Petitioners’ injuries because pricing could

affect the mix of conventional and electric vehicles

purchased,” the panel refused to credit that theory

either because (it believed) petitioners had not

submitted explicit “evidence that manufacturers

would change their prices.” Pet.App.24a.

That demand for specific “record evidence” to

prove that eliminating coercive regulations is likely to

lead regulated parties to change their behavior,

Pet.App.23a, cannot be squared with this Court’s

precedent.

In Bennett, for example, this Court

considered a challenge by a group of ranchers and

irrigation districts to a Biological Opinion issued by

the U.S. Fish and Wildlife Service under the

Endangered Species Act. 520 U.S. at 158-59. That

Biological Opinion concluded that unless the Bureau

of Reclamation made changes to the operation of the

Klamath Project, a series of lakes, rivers, dams, and

irrigation canals in northern California and southern

Oregon from which the petitioners received water, it

would jeopardize the continued existence of two

endangered species of fish. Id. The government

challenged the petitioners’ Article III standing,

asserting that vacating the Biological Opinion would

not necessarily redress the petitioners’ injury because

the Bureau of Reclamation “retain[ed] ultimate

responsibility for determining” how to operate the

Klamath Project, and could decide to allocate less

water to petitioners even absent the Biological

Opinion. Id. at 168.

In a unanimous opinion by Justice Scalia, this

Court rejected the government’s argument. As the

Court explained, while redressability may be lacking

10

if a plaintiff’s injury “is ‘the result of the independent

action of some third party not before the court,’” that

“does not exclude injury produced by determinative or

coercive effect upon the action of someone else.” Id. at

169 (brackets omitted) (quoting Lujan, 504 U.S. at

560-61). Thus, it did not matter that the Bureau of

Reclamation had the power to impose the same water

restrictions independent of the Biological Opinion.

What mattered was that the Biological Opinion “has a

powerful coercive effect” on the Bureau, such that

vacating it meant that petitioners’ injury “will ‘likely’

be redressed—i.e., the Bureau will not impose [the

same] water level restrictions—if the Biological

Opinion” is set aside. Id. at 169, 171. The same logic

applies here: Given the “powerful coercive effect” of

the California standards, and their express intent of

reducing liquid fuel consumption, it is “not difficult to

conclude” that vacating the waiver is “likely” to affect

the behavior of the regulated automakers and redress

petitioners’ injury. Id. at 169, 170-71. Petitioners

here were not required to submit additional explicit

evidence to prove that straightforward point, any

more than the Bennett petitioners would have been

required at summary judgment to submit an affidavit

from the Bureau of Reclamation declaring that it

would in fact change its water level restrictions if the

Biological Opinion were vacated. See id. at 170-71.

This Court’s decision in Department of Commerce

confirms the point. The plaintiffs there—a variety of

government and non-government organizations—

challenged the government’s decision to include a

question about citizenship on the decennial census.

588 U.S. at 763-64. That decision did not regulate the

plaintiffs directly, but they contended that they were

11

injured because including that question would

predictably lead noncitizen households to respond to

the census at lower rates than other groups. Id. at

766-67. This Court—again unanimously—found that

theory sufficient to support Article III standing,

rejecting the government’s argument that any harm to

the plaintiffs depended on “speculation about the

decisions of independent actors.” Id. at 768 (quoting

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414

(2013)).

Again, the Court concluded that the

“predictable effect of Government action on the

decisions of third parties” was sufficient to show

standing, without requiring explicit statements from

those third parties themselves describing precisely

how they would respond to a favorable judicial

decision. Id. The D.C. Circuit’s decision to require

more here cannot be reconciled with either Bennett or

Department of Commerce.

In short, it has been “long understood” that

agency action can be challenged “in suits by

unregulated plaintiffs who are adversely affected by

an agency’s regulation of others,” Corner Post, 144

S.Ct. at 2460 (Kavanaugh, J., concurring)—and yet

this Court has never required those adversely affected

plaintiffs to submit explicit testimony from the

directly regulated third parties detailing their likely

response to a favorable judgment in order to establish

redressability. That is for good reason. After all, if

those third parties were going to do what the agency

regulation required whether or not that regulation

existed, the agency “would presumably not bother”

promulgating the regulation at all. Massachusetts,

549 U.S. at 526.

12

More to the point, there is a reason why “entire

classes of administrative litigation … have

traditionally been brought by unregulated parties,”

Corner Post, 144 S.Ct. at 2464 (Kavanaugh, J.,

concurring): The directly regulated parties in those

cases typically have their own reasons for not bringing

the litigation themselves—ranging from a clear-eyed

recognition that the real costs of the regulation fall

elsewhere to agency capture or fear of retaliation after

getting crosswise with their regulator. The same

considerations that caused them to forgo bringing

their own challenge will make them reluctant to

cooperate with the unregulated parties even when it

comes to something as simple as confirming that

vacating a rule designed to increase the production

and delivery for sale of electric vehicles will likely

result in the production of fewer electric vehicles.

4. The panel below believed this case was special

because (in its view) the “relatively short duration” of

the waiver at issue, which applies only through model

year 2025, suggested that the directly regulated

parties might already be locked into their production

decisions. Pet.App.22a. But that is at most a

(misplaced) mootness concern, not a redressability

deficiency.

The standing inquiry “focuse[s] on

whether the party invoking jurisdiction had the

requisite stake in the outcome when the suit was filed,”

not when the court eventually renders its decision.

Davis v. FEC, 554 U.S. 724, 734 (2008) (emphasis

added); see Pet.App.25a. And at the time petitioners

filed their challenge—within 60 days of EPA’s March

2022 order, see Pet.App.14a-15a—the waiver still had

some four years left to run, which was ample time for

13

automakers to revise their production and/or pricing

plans if the waiver were vacated.

Again, the agency’s own actions prove the point:

If manufacturers’ plans for the next four years were

already firmly locked in place in March 2022, there

would have been no point in issuing the waiver at all.

While manufacturers may take “years of lead time” to

plan their entire future model fleets or “re-optimize”

their product plans in response to regulatory shifts,

Pet.App.23a-24a, it hardly follows that vacating the

waiver would lead to no change at all in automakers’

production mixes for the next four years—and any

change at all would suffice, as even partial relief is

enough to establish redressability. Massachusetts,

549 U.S. at 525; Larson, 456 U.S. at 243 n.15.

Moreover, even the panel below conceded that

manufacturers “could change their prices” within the

period that the waiver covers, “which may redress

Petitioners’ injuries.” Pet.App.24a. Article III did not

require petitioners to also submit explicit “evidence”

that automobile pricing would respond to the laws of

supply and demand if the artificial constraints

imposed by the waiver were removed.

B. The D.C. Circuit’s Standing Decision

Will Create Confusion and Unnecessary

Litigation Burdens.

The decision below is not only wrong, but

threatens to cause substantial confusion and

unwarranted litigation burdens for the wide swath of

“unregulated but adversely affected parties who

traditionally have brought, and regularly still bring,

APA suits challenging agency rules.” Corner Post, 144

S.Ct. at 2461 (Kavanaugh, J., concurring).

As

14

petitioners explain, the decision below conflicts with

decisions from at least four other circuits that have

correctly followed this Court’s precedent and held that

non-regulated parties can show standing based on a

regulation’s predictable effect on regulated third

parties, without requiring those non-regulated parties

to submit evidence explicitly spelling out that

predictable effect in precise detail. Pet.21-23. That

conflict over the basic question of what is required to

establish Article III standing is of obvious importance

and warrants this Court’s attention.

That is all the more true because the decision

below comes from the D.C. Circuit, which has long

been a primary venue for regulatory challenges (and

which Congress has made the exclusive venue for

many challenges). By suggesting that adversely

affected parties may need “additional affidavits or

other evidence” to establish redressability even when

the predictable effects of vacating the challenged

regulation should be clear, Pet.App.24a-25a, the

decision below threatens to encourage litigants in

countless future regulatory challenges to spend

significant resources filling the record with thirdparty declarations or expert evidence that should be

unnecessary, just to explicitly state what common

sense already makes obvious.

Those baleful consequences will not be limited to

a handful of unlucky litigants. On the contrary,

“entire classes of historically common and vitally

important litigation against federal agencies” are

routinely brought (and in some cases are only likely to

be brought) by plaintiffs who are adversely affected

but not directly regulated by the challenged agency

15

action.

Corner Post, 144 S.Ct. at 2464, 2469

(Kavanaugh, J., concurring). API itself provides a

perfect example, as it is currently challenging two

more recent (and even more extreme) EPA rules and a

National Highway Traffic Safety Administration

(“NHTSA”) rule that together represent the latest

front in the same whole-of-government regulatory

effort to mandate electrification of the Nation’s vehicle

fleets. See Am. Petroleum Inst. v. EPA, No. 24-1196

(D.C. Cir. docketed June 13, 2024); Am. Petroleum

Inst. v. EPA, No. 24-1208 (D.C. Cir. docketed June 18,

2024); In re Nat’l Highway Traffic Safety Admin.,

No. 24-7001 (6th Cir. docketed July 18, 2024). API’s

members are not the direct object of those rules, but

they are unquestionably adversely affected by those

rules, which seek to dramatically reduce the number

of liquid-fueled vehicles on the Nation’s roads by 2032.

See, e.g., 89 Fed. Reg. 27,842, 27,858, 28,092, 28,129

(Apr. 18, 2024) (projecting that EPA’s new emissions

standards will “lower demand for liquid fuel,”

“reduc[e] … U.S. gasoline consumption by 780 billion

gallons,” and adversely affect “the petroleum refining

industry [and] fuel distributors”).

Given the obvious and severe impact of the rules

at issue in those cases on API’s members, and the

equally obvious fact that vacating those rules would at

least mitigate that impact, the standing inquiry

should be straightforward—which is presumably why

the government has not disputed fuel producers’

Article III standing in the ongoing litigation over the

previous round of analogous EPA and NHTSA

standards. See Texas v. EPA, No. 22-1031 (D.C. Cir.

argued Sept. 14, 2023); Nat. Res. Def. Council v.

NHTSA, No. 22-1080 (D.C. Cir. argued Sept. 14,

16

2023). Indeed, API’s standing to challenge this latest

round of rules is even clearer given that the new

standards reach eight years or more into the future.

Given the agencies’ own projections that their

standards will cause automakers to change their

behavior (and reduce gasoline consumption by

hundreds of billions of gallons), see, e.g., 89 Fed. Reg.

at 28,092, there should be no question that vacating

those behavior-modifying standards will redress the

injuries of API members. But despite the blindingly

obvious standing of API and its members, the decision

below would require devoting additional resources to

an effort to substantiate the obvious. All of that not

only wastes resources, but distracts attention from the

merits. The latter reality is dramatically illustrated

by the decision below, which completely sidestepped

petitioners’ challenge to a waiver determination that

repurposed a provision designed to address Californiaspecific problems into a tool to address the decidedly

global issues surrounding global climate change. As

explained next, this Court should repudiate this effort

to sidestep the merits by not only correcting the D.C.

Circuit’s flawed standing analysis, but by addressing

the merits. At a bare minimum, however, this Court

should review and reverse a decision that converts

straightforward redressability inquiries into a

satellite litigation that needlessly consumes resources

and distracts from the merits.

II. The Court Should Also Grant Review On The

Merits And Vacate EPA’s Erroneous Waiver

Decision.

The Court should also review the merits and

decide whether EPA has statutory authority to waive

17

preemption for California-specific standards directed

at curbing global climate change. Despite repeated

challenges, that important issue has now evaded

judicial scrutiny for over a decade—and absent this

Court’s review, it may well evade judicial scrutiny

here once again given that its application does not

extend beyond the 2025 model year. That is no small

matter, as EPA’s strained interpretation of the statute

cannot be squared with its plain text, and has allowed

California to extend its unusual claim to regulatory

authority over the Nation’s automobile industry far

beyond the careful limits that Congress set. This

Court should take advantage of this opportunity to

correct that seriously problematic state of affairs.

The waiver authority here was designed to allow

California to continue to address extraordinary

California-specific problems, not to empower

California to supplant the federal government in

addressing global issues. Under Section 209(b), EPA

can waive preemption for California emissions

standards only if it concludes that California “need[s]

such State standards to meet compelling and

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

The standards at issue here cannot meet that

statutory test. They target global climate change, not

“compelling and extraordinary” local conditions in

California. Id. They cannot be “need[ed] … to meet”

the conditions they target, id., because (as EPA itself

recognizes) they will have limited impact on climate

change either in California or at the global level. And

EPA’s attempt to escape those problems by asserting

that Section 209(b) allows it to waive preemption

whenever California needs any part of its emissions

program to address compelling local conditions—

18

whether or not it needs the particular “State

standards” for which it seeks a waiver, id.—flatly

contravenes the statutory text and would eviscerate

the limits that Congress put on the unique regulatory

power that it has permitted California to exercise.

1. Allowing California to rely on global climate

change as a “compelling and extraordinary” condition

that should allow California to set its own emissions

standards contravenes the text, structure, and history

of Section 209(b). See Pet.28-30. Global climate

change is not “extraordinary” to California. And that

is all that matters, as Section 209(b) is designed to

allow California to address its own state-specific

issues, not to second-guess federal regulation of

national (let alone global) issues. See, e.g., Ford Motor

Co. v. EPA, 606 F.2d 1293, 1303 (D.C. Cir. 1979)

(recognizing that the waiver provision “focus[es] on

local air quality problems—problems that may differ

substantially from those in other parts of the nation”);

H.R. Rep. No. 90-728, at 22 (1967) (noting California’s

“unique problems” and particular “climate and

topography”); see also Motor Vehicle Mfrs. Ass’n v. N.Y.

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

Cir. 1994) (noting that the waiver provision applies to

California “because its unique Los Angeles smog

problem caused it to begin regulating auto emissions”

before any other state). Nothing in the statutory text

or structure remotely suggests that Congress intended

to authorize California—and California alone—to set

emissions standards targeted at nationwide issues, let

alone global ones like global climate change.

2. Even if California were authorized to

promulgate emissions standards targeting global

19

climate conditions, it does not “need” the standards at

issue here to “meet” those conditions. By its plain and

ordinary language, the statutory requirement that

California must “need” its standards to “meet” the

relevant conditions means that the standards must be

essential to respond to those conditions. See Pet.31.

That requirement cannot be met by standards that

will have no meaningful impact on the conditions they

are designed to address—as EPA itself has already

concluded with respect to the standards at issue here.

See 84 Fed. Reg. 51,310, 51,341 (Sept. 27, 2019) (“[T]he

waiver 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.”); id. at

51,349 (California standards “will not meaningfully

address global air pollution problems of the sort

associated with [greenhouse gas] emissions”).

And even if the standards at issue here were to

produce some appreciable effect on greenhouse gas

emissions, California cannot “need” those standards if

there are other measures that would achieve the same

reduction at a lower cost. Absent a showing that other

regulatory options—from the wide swath of possible

approaches to reducing greenhouse gas emissions that

California has at its disposal—could not produce

comparable outcomes at a lower cost, it cannot be said

that California “needs” these particular emissions

standards to meet its global climate change objectives.

Section 209(b) therefore does not authorize waiving

preemption for these standards.

3.

Apparently recognizing those glaring

problems, EPA attempts to evade them by arguing

20

that it can grant a waiver as long as California needs

any part of its entire vehicle emissions program to

respond to compelling and extraordinary local

conditions—regardless of whether the particular

standards for which California seeks a waiver respond

to those local conditions. See, e.g., 87 Fed. Reg. at

14,335. That whole-program approach fails to follow

the statutory text. Section 209(b) permits EPA to

waive preemption for particular California standards

only when California “need[s] such State standards to

meet compelling and extraordinary conditions,” 42

U.S.C. §7543(b)(1)(B) (emphasis added), not whenever

California may need some other part of its emissions

program to address its local air pollution problems.

Congress understood when it enacted Section

209(b) that California’s motor vehicle emissions

control program would be an evolving program, and

that California would have to apply for a new

preemption waiver whenever it sought to impose new

motor vehicle emissions standards based on changing

circumstances. In that context, the decision to allow

EPA to waive preemption only when “such State

standards” are needed to address compelling local

conditions, id., cannot be read to give California free

rein to issue any vehicle emissions standards it wants

as long as some other part of its program is needed to

address local air pollution. There is no plausible

reason to believe that when Congress afforded

California the unique power to set vehicle emissions

standards to address its unusual local conditions, it

also simultaneously handed California a blank check

to tack on any other emissions regulations that

California wants, especially when those tacked-on

21

regulations

conditions.

target

nationwide

(or

worldwide)

To the extent it seeks any textual basis for its

interpretation at all, EPA relies on the first sentence

of Section 209(b)(1), which provides that EPA can

provide a waiver only if California “determines that

the State standards will be, in the aggregate, at least

as protective of public health and welfare as applicable

Federal standards.” Id. §7543(b)(1). But that “in the

aggregate” requirement goes to the overall health and

environmental protectiveness of California’s program,

allowing California to have standards that are

different from EPA’s but no less protective of public

health or welfare. That threshold requirement has

nothing to do with the separate requirement in

Section 209(b)(1)(B) that the standards for which

California seeks a waiver must be needed to meet

compelling and extraordinary local conditions.

Indeed, Congress’ use of the “in the aggregate”

language in setting the threshold condition for

California’s standards demonstrates that Congress

knows how to focus on the overall effect of California’s

regulatory program when it wants to. By omitting

that “in the aggregate” language in §209(b)(1)(B),

Congress clearly wanted the focus to be on the

particular standards for which California seeks a

waiver.

The whole-program approach thus cannot be

reconciled with the text or structure of Section

209(b)(1)(B). Indeed, it effectively eliminates the

statutory requirement that California “need such

State standards to meet compelling and extraordinary

conditions” entirely, id., and instead allows California

22

to expand its emissions program to include any

standards California considers desirable to address

national or global air pollution problems—

eviscerating the strict limits that Congress set on

Section 209(b)’s unusual one-state-only grant of

regulatory power. This Court should not allow EPA to

continue to rely on that flawed interpretation of the

statute to issue waivers authorizing California to

regulate far more than Congress authorized.

CONCLUSION

For the foregoing reasons and those stated in the

petition, this Court should grant certiorari.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

C. HARKER RHODES IV

NICHOLAS A. AQUART*

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

*Supervised by principals of the firm who

are members of the Virginia bar

Counsel for Amicus Curiae

August 7, 2024