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 ROYALTY

COUNCIL AND AMERICAN ROYALTY

COUNCIL IN SUPPORT OF

PETITION FOR CERTIORARI

♦

August 7, 2024

Ivan L. London

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

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

i

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

iii

IDENTITIES AND INTERESTS OF AMICI

CURIAE ...............................................................

1

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

3

ARGUMENT .......................................................

6

I.

THE DECISION BELOW CONFLICTS

WITH THE RELEVANT DECISIONS

OF THIS COURT. ....................................

6

ROYALTY OWNERS WOULD SUFFER

REDRESSABLE INJURIES FROM

THE WAIVER AND “EV MANDATE.” ...

11

III.

THIRD-PARTY AFFIDAVITS ARE

NOT NECESSARY FOR STANDING. ...

12

IV.

THE WAIVER AND “EV MANDATE”

IMPLICATE PROPERTY INTERESTS. .

13

V.

THE WAIVER AND “EV MANDATE”

RAISE MAJOR QUESTIONS..................

16

VI.

THE D.C. CIRCUIT ERRED BY

ADDRESSING MOOTNESS

DISGUISED AS REDRESSABILITY......

19

II.

i

CONCLUSION ....................................................

ii

20

TABLE OF AUTHORITIES

Cases

Page(s)

Armstrong v. United States,

364 U.S. 40 (1960) .......................................

16

Bennett v. Spear,

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

City of Arlington v. F.C.C.,

569 U.S. 290 (2013) .....................................

13

E. Enters. v. Apfel,

524 U.S. 498 (1998) .....................................

16

Energy Future Coalition v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ..................... 7, 10

Hodel v. Irving,

481 U.S. 704 (1987) .....................................

16

Kelly Oil Co. v. Svetlik,

975 S.W.2d 762 (Tex. App.-- Corpus

Christi 1998)................................................

1, 4

Keystone Bituminous Coal Ass’n v.

DeBenedictis,

480 U.S. 470 (1987) .....................................

15

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016). ....................................

19

iii

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ................................... 14, 15

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ..................................... 6, 12

Massachusetts v. EPA,

549 U.S. 497 (2007) ..................................... 6, 10

Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak,

567 U.S. 209 (2012) .....................................

11

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ..................................... 6, 12

Munn v. Illinois,

94 U.S. 113 (1876) .......................................

14

Murr v. Wisconsin,

582 U.S. 383 (2017) .....................................

15

Nat’l Credit Union Admin. v. First Nat’l Bank

& Trust Co.,

522 U.S. 479 (1998) .....................................

12

Panhandle Producers & Royalty Owners Ass’n

v. Econ. Regul. Admin.,

822 F.2d 1105 (D.C. Cir. 1987) ...................

11

Penn Cent. Transp. Co. v. New York City,

438 U.S. 104 (1978) ..................................... 14, 16

iv

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) .....................................

13

Util. Air Regul. Grp. v. EPA,

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

17

West Virginia v. EPA,

597 U.S. 697 (2022) ..................................... 17, 18

Statutes

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

v

7

IDENTITIES AND INTERESTS OF

AMICI CURIAE 1

Texas Royalty Council (TRC) is a grassroots

entity dedicated to representing and advancing the

interests of Texas royalty owners and energy

professionals. The TRC was organized to monitor,

advocate, and educate royalty owners, elected

officials, and the energy industry on issues affecting

royalty owners in Texas. TRC’s primary focus is to

promote the exploration and production of Texas oil,

natural gas, and minerals while maximizing the

return on the value of Texas’ natural resources. In

Texas, “It is well-settled that a royalty interest in an

oil and gas lease is an interest in real property, held

to have the same attributes as real property.” Kelly

Oil Co. v. Svetlik, 975 S.W.2d 762, 764 (Tex. App.-Corpus Christi 1998). So an injury to a person’s

royalty is an injury to that person’s property.

American Royalty Council (ARC) represents

royalty owners and energy professionals across the

United States and is dedicated to advancing domestic

oil and natural gas production by creating best

business practices through dialogue, communication,

and education. ARC encourages, promotes, and

supports energy issues on a local, state, and national

level through educational efforts on the grassroots

1 Per Supreme Court Rule 37.6, the undersigned affirms that no

counsel for a party authored this brief in whole or in part, and no

such counsel or party made a monetary contribution intended to

fund the preparation or submission of the brief. And as required

by Rule 37.2, amici’s counsel notified counsel of record for all

parties of amici’s intention to file this brief at least 10 days prior

to the due date for the brief.

1

level in all 435 congressional districts on the

importance of the oil and natural gas industry.

TRC and ARC share a common interest in this

case. Each amicus is committed to protecting the wellbeing of royalty owners. But unelected regulators are

trying to take the royalty interests away from those

they represent. The regulators do not have authority

to do that, and they are not being reasonable. In this

case, the focus is on the regulators, the vehicle

manufacturers, and the liquid-fuels providers. But the

impact of the case goes way further.

The federal Environmental Protection Agency’s

preemption waiver, which lets California regulators

impose their vehicle-emission standards on the rest of

the country and lets those state-level regulators put

an end to liquid-fuel vehicles in the United States,

injures oil and gas royalty owners. The royalty owners

give up their properties in return for royalty

payments, but federal regulators at the EPA have

decided that California regulators can just negate

those expectations of property-based returns.

If a free market led to an “EV transition,” then

that might be okay. But this case shows unlawful and

otherwise unreasonable regulator-meddling in

markets. Instead of allowing a free market, the

federal regulators (unelected, of course) have decided

to let California regulators kill an entire industry and

take away property rights. In reviewing that

regulatory action, the lower court did not think about

the families and other property owners that the

regulators would hurt along the way. So ARC and

TRC write separately to ask the Court to take this

2

case in hopes that the Court will help them redress

their royalty owners’ injuries.

The EPA’s action not only affects fuel providers

but further significantly impacts royalty owners

across the country. For many of these individuals,

royalties are their primary source of income, used to

cover essential expenses like medicines, energy bills,

and food. The majority of royalty owners are everyday

Americans trying to make ends meet. By allowing

California to effectively implement a nationwide EV

mandate, the EPA’s waiver threatens to severely

diminish the value of these royalty interests,

potentially leaving many families struggling

financially. This Court should recognize the broad

impact of the EPA’s action and the importance of

allowing affected parties to challenge it.

The court below said that people hurt by the

EPA’s waiver could not sue to redress their injuries,

but that’s wrong.

SUMMARY OF THE ARGUMENT

The lower court should have considered the

merits of this case rather than invent a new

“redressability” hurdle to avoid review. According to

the lower court, fuel providers who (like the royalty

owners represented by TRC and ARC) would be hurt

by the EPA’s preemption waiver and de facto adoption

of an EV mandate, could not establish standing to sue

because they did not submit affidavits from thirdparty automakers promising that an EV mandate

would result in reduced manufacturing of liquid-fuel

based vehicles. The fuel providers did provide record

evidence of the harm sure to flow—intended to flow—

from an EV mandate, which will also harm amici’s

3

royalty owners. But to avoid review, the lower court

demanded more.

The lower court’s newly invented redressability

standard tackled an important question—what does a

claimant have to do to get a court to review its

claims?—in a way that conflicts with relevant

decisions of this Court. When a claimant has provided

record-evidence of how an agency action would cause

the claimant injury, this Court has not further

required third-party affidavits or other third-party

record evidence corroborating that injury. And this

Court has not required the claimant to show that a

court could fully redress the claimed injury before

opening the courthouse doors. The lower court’s

invention of those requirements conflicts with this

Court’s more lenient standards. See Rule 10(c).

And while the lower court’s ruling barred the

courthouse doors against the very claimants (fuel

providers) that the EPA’s regulatory action is

intended to harm, it also goes further. For example,

the whole point of an EV mandate is to end oil

production and consumption. But amici’s royalty

owners rely on oil production and consumption. They

receive economic benefits—royalty payments—in

return for letting others produce oil from their

properties. A federal regulator’s action to take away

royalty owners’ economic benefits injures them.

Further, royalties are not mere economic interests;

they are property interests. See, e.g., Kelly Oil Co., 975

S.W.2d at 764. A federal regulator’s action to take

away royalty owners’ properties also injures them.

The whole point of the EPA’s action in this

case—waiving its preemption authority to create a

4

nationwide EV mandate—is to stop oil production and

consumption in the United States. It is targeted

directly at liquid-fuel providers, and it injures royalty

owners like TRC’s and ARC’s royalty owners too.

These injured groups should obviously have access to

the federal courts to assess their claims that the EPA’s

action is unlawful or otherwise unreasonable, and it

makes no sense that they should have to obtain

affidavits explaining that automakers would produce

less non-conventional vehicles or change their pricing

in response to vacatur of the waiver. But this

misapprehends the nature of petitioners’ injuries and

the relief they seek.

Petitioners are not asking the court to dictate

automakers’ business decisions. Rather, they are

asking the court to remove a regulatory mandate that

effectively compels automakers to produce and sell

fewer liquid-fuel vehicles than they otherwise would.

By vacating the EPA’s unlawful waiver, the court

would eliminate a substantial regulatory burden on

the production and sale of liquid-fuel vehicles,

restoring a more level playing field and allowing

automakers to respond to consumer demand and

market forces. The significant impact of the mandate

and basic economics demonstrate that removing this

burden would likely lead to increased production and

sales of liquid-fuel vehicles, thus redressing the

injuries to fuel providers and royalty owners.

Moreover, the underlying policy question at

issue in this case—whether and how to electrify the

Nation’s vehicle fleet—is one of immense economic

and political significance that should be decided by

Congress, not administrative agencies. The EPA

overstepped its statutory authority by effectively

5

delegating that major policy judgment to California

through the waiver. And the court below insulated the

EPA’s action by inventing new reasons to lock the

courthouse doors. The Court should grant certiorari to

address whether and how the “major questions”

doctrine applies to the EPA’s regulatory action.

ARGUMENT

I.

THE DECISION BELOW CONFLICTS

WITH THE RELEVANT DECISIONS OF

THIS COURT.

Sometimes, this Court takes cases because a

lower court “decided an important question of federal

law that . . . conflicts with relevant decisions of this

Court.” Rule 10(c). In this case, the lower court did

exactly that, and review is warranted.

Under this Court’s relevant decisions, “The

irreducible constitutional minimum of standing” has

three elements: (1) injury in fact, (2) causation, and (3)

redressability. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992). With respect to the third element,

redressability, this Court has not set a high bar; the

general rule is that “it must be likely, as opposed to

merely speculative, that the injury will be redressed

by a favorable decision.” Lujan, 504 U.S. at 561. And

a favorable ruling need not fully redress the alleged

injury. Massachusetts v. EPA, 549 U.S. 497, 525–26

(2007).

In Massachusetts v. EPA, for example, the

Court found standing based on the predictable effects

of the EPA’s decision to not regulate greenhouse gas

emissions from motor vehicles. Even though (1) courts

6

could not fully redress the alleged climate-related

injuries and (2) much of the remedy would ultimately

turn on what other, third-party entities might do, the

courts likely could still redress some of the claimed

injuries; that was sufficient to find standing. Id.

The Court recognized that while regulating

motor-vehicle emissions would not “reverse” climate

change, “a reduction in domestic emissions would slow

the pace of global emissions increases, no matter what

happens elsewhere.” Id. at 526. That was enough—the

Court did not require the petitioners (States and local

governments) to submit, for example, affidavits from

third-party automakers detailing exactly how they

would respond to EPA regulation for purposes of

deciding whether the petitioners themselves would be

injured.

True, the petitioners in Massachusetts sued per

a specific Clean Air Act “procedural right.” Id. at 517–

18 (citing 42 U.S.C. § 7607(b)(1)). But the D.C.

Circuit—that is, the lower court here—has already

applied Massachusetts and this Court’s other relevant

decisions to a case very similar to this case, and it has

shown that this Court’s relevant decisions require

allowing fuel providers to challenge EPA climate/fuel

regulations even though the regulations facially

target automakers rather than fuel providers.

In Energy Future Coalition v. EPA, 793 F.3d

141 (D.C. Cir. 2015), the D.C. Circuit held that

ethanol producers—situated similarly to the fuelprovider petitioners here—had standing to challenge

an EPA regulation that impeded the use of their

product (E30) as a test fuel. Id. at 144–45. Writing for

the court’s panel, then-Judge Kavanaugh explained

7

that the fuel providers suffered a redressable injury

because “EPA’s test fuel regulation prohibits the use

of E30 as a test fuel,” which the court described as a

“regulatory impediment” to the use of the fuel

providers’ product. Id. at 144.

But wait, said the EPA, “the test fuel regulation

is technically directed at vehicle manufacturers,

not biofuel producers.” Id. (emphasis added).

According to the EPA, because the regulation facially

targeted automakers instead of fuel providers, the

fuel providers’ alleged injuries were not redressable

and they did not have standing.

The court rejected that constrained view of

standing—as the lower court should have done here—

and held that the fuel providers could challenge the

E30 regulation. The fact that the regulation facially

targeted automakers rather than fuel providers

does not undermine petitioners’

standing. The standing question . . . is

straightforward: If the Government

prohibits or impedes Company A from

using Company B’s product, does

Company B have standing to sue?

Suppose the FDA bans or makes it

harder for soda manufacturers to use

sugar. Does a sugar manufacturer have

standing to sue? . . . Ordinarily the

answer to those questions is yes. In

such cases, both Company A and

Company B are “an object of the action

(or forgone action) at issue,” so “there is

ordinarily little question” that they

have standing . . . . So it is here.

8

Id. at 144 (citations omitted, emphasis added). And

specifically on redressability:

[P]etitioners’ injury is redressable.

Invalidating the [EPA’s regulatory]

requirement

would

remove

a

regulatory hurdle to the use of E30 as

a test fuel. That is enough to

demonstrate redressability. . . . . The

plaintiff “need not show that a

favorable decision will relieve” his or

her “every injury.”

Put simply, petitioners have standing

to challenge the legality of the test fuel

regulation.

Id. at 144–45 (quoting Massachusetts). In applying

this Court’s relevant decisions, the court did not

require the fuel providers to submit affidavits from

automakers saying that they would use E30. Instead,

it enough that “invalidating the [EPA regulatory]

requirement would remove a regulatory hurdle to the

use of E30 as a test fuel.” Id. at 145. 2

Here, the fuel providers did provide recordevidence of the harm sure to flow—intended to flow—

from an EV mandate. See Pet. 3–4 (petitioners

introduced unrebutted declarations that the EV

2 Similarly, in Bennett v. Spear, 520 U.S. 154 (1997), the Court

held that a plaintiff could show standing by alleging that the

“injury fairly can be traced to the challenged action” and that the

injury is “likely [to] be redressed by a favorable decision.” Id. at

167. In such a case, the “remov[al] [of] a regulatory hurdle” to the

petitioners’ desired action was sufficient for redressability. Id. at

169. The Court did not demand proof that third parties would act

in a specific way if the regulatory barrier were removed.

9

mandate would reduce consumption of liquid fuel).

The lower court recognized that, Pet.App.19a–20a,

but demanded more.

The lower court’s demand for more—here,

additional affidavits from automakers that they

would indeed make fewer EV-compliant vehicles if the

waiver was vacated—conflicts with this Court’s

relevant decisions, which stand only for the

proposition that an injury is redressable if a favorable

court ruling would likely provide the claimant some

relief. E.g., Massachusetts, 549 U.S. at 525–26. Not

only does it misunderstand the desired relief, but

there was evidence (and it was self-evident) that by

vacating the EPA’s action—removing a “regulatory

hurdle,” Energy Future Coalition, 793 F.3d at 145—

the lower court would have given the fuel providers

(and royalty owners like those represented by TRC

and ARC) some relief. That is all this Court requires

to show “redressability,” and the Court should review

the lower court’s conflicting decision. See Rule 10(c);

see also Massachusetts, 549 U.S. at 525–26; Bennett v.

Spear, 520 U.S. at 167–69.

Vacating the EPA’s waiver would provide

immediate relief to both fuel providers and royalty

owners. It would remove the regulatory hurdle

imposed by California’s EV mandate, restoring

demand for liquid fuels and preserving the value of

royalty interests. This relief, even if partial, is

sufficient to establish redressability under this

Court’s precedents. The lower court’s demand for

additional evidence from third parties goes beyond

what this Court has required and would create an

insurmountable barrier to judicial review in many

cases involving agency action.

10

II.

ROYALTY

OWNERS

WOULD

SUFFER

REDRESSABLE

INJURIES

FROM

THE

WAIVER AND “EV MANDATE.”

If the unelected federal regulators at the EPA

can stop the sale of liquid-fuel vehicles, then that

would injure TRC’s and ARC’s royalty owners. By

depressing demand for liquid fuels, the regulations

reduce the value royalty owners’ property interests in

mineral rights and royalty agreements. In contrast,

vacating the EPA’s action would restore demand and

royalty revenues compared to a world in which

California’s “EV mandate” is the law of the land.

Courts have recognized that royalty owners

may be within the “zone of interests” protected by

federal statutes regulating the energy industry, even

if the statutes do not directly regulate royalty owners

themselves. See, e.g., Panhandle Producers & Royalty

Owners Ass’n v. Econ. Regul. Admin., 822 F.2d 1105,

1109 (D.C. Cir. 1987) (finding that royalty owners

were within the zone of interests protected by the

Natural Gas Policy Act, because royalty owners had a

direct financial stake in the regulated price of natural

gas sufficient “to establish the ‘concrete, perceptible

harm of a real, non-speculative nature’”); cf. Match-EBe-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 567 U.S. 209, 225 (2012) (the prudentialstanding threshold “is not meant to be especially

demanding”).

The effect of the lower court’s ruling on entities

like royalty owners amplifies the effect of the court’s

decision on the fuel providers. How are royalty

owners—often families and individuals dispersed

throughout the country—going to obtain affidavits

11

from international automakers who might not want

anything to do with a challenge to a given federal

regulatory action? What if the automakers agree with

the royalty owners but do not want to get crosswise

with the same regulators that can investigate and

impose penalties on the automakers? As a matter of

practice, the lower court would erect a barrier to the

courthouse that the royalty owners could never

overcome, no matter how great their injuries nor how

obviously the court could redress those injuries.

III.

THIRD-PARTY AFFIDAVITS

NECESSARY FOR STANDING.

ARE

NOT

Any time the effects of a challenged regulation

will flow through the conduct of regulated third

parties—a feature common to many agency actions—

the decision below would demand affidavits from those

third parties proving exactly how those third parties

would respond to the relief sought. But courts have

long entertained challenges by plaintiffs whose

“injur[ies] arise[] from the government’s allegedly

unlawful regulation (or lack of regulation) of someone

else.” Lujan, 504 U.S. at 562. The courts did not

require third-party affidavits to demonstrate

standing.

For example, in Monsanto Co. v. Geertson Seed

Farms, 561 U.S. 139 (2010), conventional alfalfa

farmers had standing to challenge an agency decision

to deregulate genetically engineered alfalfa, which

threatened to contaminate their crops. Id. at 154–55.

Similarly, in Nat’l Credit Union Admin. v. First Nat’l

Bank & Trust Co., 522 U.S. 479 (1998), banks could

challenge agency action that exposed them to

increased competition from credit unions. Id. at 488.

12

In neither case were the petitioners required to

provide third-party affidavits from the directly

regulated parties.

The lower court would dismiss those cases for

lack of standing. In Monsanto, for instance, the

conventional farmers would have needed affidavits

from competitor farmers specifying the extent to

which the deregulated alfalfa growers would have

contaminated their fields. In Nat’l Credit Union

Admin., the banks would have needed affidavits

proving how many new members the credit unions

would have poached.

If affirmed, the lower court’s novel hurdle to

standing would prevent injured entities from seeking

judicial review of agency action. That would impair

the courts’ critical function of policing the bounds of

agency authority and ensuring executive fidelity to

the law. See City of Arlington v. F.C.C., 569 U.S. 290,

327 (2013) (Roberts, C.J., dissenting) (“the obligation

of the Judiciary” is to ensure that the other branches

confine themselves to their “proper role[s]”). This

Court should intervene to ensure that the courthouse

doors are still open to those harmed by unlawful

exercises of agency power.

IV.

THE WAIVER AND “EV MANDATE”

IMPLICATE PROPERTY INTERESTS.

For TRC, ARC, and the royalty owners they

represent, the effects of the EPA’s waiver are not

merely economic—they implicate fundamental

property rights. Mineral rights, including the right to

royalty payments, are generally property interests

protected by the Takings Clause. See Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393 (1922); see also Munn

13

v. Illinois, 94 U.S. 113 (1876). By letting California

regulators kill demand for domestically produced oil,

the EPA’s waiver directly affects the values and

utilities of these rights.

This Court has long held that government

actions that significantly diminish property values or

impair the use of property can violate the Fifth

Amendment. A “regulation that deprives land of all

economically beneficial use” is a per se taking

requiring compensation. Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1027 (1992). Even where a

regulation does not affect a complete deprivation, it

may still go “too far” in burdening property rights and

violating the Takings Clause. Penn Cent. Transp. Co.

v. New York City, 438 U.S. 104, 124 (1978).

By green-lighting California’s “EV mandate,”

the federal regulators at the EPA are letting

California regulators impose severe burdens

nationwide on royalty owners’ abilities to enjoy and

use their property interests. As demand for oil and gas

plummets in the Nation’s largest vehicle market, the

value and productivity of royalties across the Country

would necessarily be impaired. While some royalty

owners may still be able to extract some value from

their properties, the “EV mandate” imposed by the

waiver significantly interferes with their investmentbacked expectations. See Penn Central, 438 U.S. at

124 (the extent of interference with investmentbacked expectations is a factor in takings analysis).

The EPA’s waiver further enables California to

impose these burdens on royalty owners without any

political accountability. If California’s “EV mandate”

were enacted through federal legislation, then

14

property owners would have the opportunity to

persuade their representatives to vote against the

law. But by allowing California to impose the

mandates by regulatory fiat, the waiver short-circuits

the political process that normally provides some

check on the potential for regulatory abuse. See Murr

v. Wisconsin, 582 U.S. 383, 398 (2017) (“States do not

have the unfettered authority to ‘shape and define

property rights and reasonable investment-backed

expectations,’ leaving landowners without recourse

against

unreasonable

regulations.”)

(citation

omitted). Royalty owners would suffer from the

undemocratic process.

Of course, States keep substantial authority to

regulate private property. See Keystone Bituminous

Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488 (1987).

But California’s regulations in this case are not runof-the-mill land-use restrictions; they are a targeted

effort to phase out a particular type of property

interest. While a typical zoning law might limit the

use of property in certain ways, it cannot aim to

completely devalue a specific class of property rights.

The “EV mandate,” by contrast, specifically intends to

kill the primary economic use of mineral rights and

royalties—using properties to provide oil that fuels

this Country. It goes far beyond the “restrictions that

background principles of the State’s law of property

and nuisance already place upon land ownership.”

Lucas, 505 U.S. at 1029.

The Court has previously recognized the need

for heightened scrutiny under the Takings Clause

when regulations uniquely burden a particular

property interest rather than adjusting “the benefits

and burdens of economic life to promote the common

15

good.” Penn Central, 438 U.S. at 124. In E. Enters. v.

Apfel, 524 U.S. 498 (1998), for example, a plurality of

the Court applied takings scrutiny to a retroactive

liability scheme that impaired companies’ contract

rights. Id. at 528–29. The Court explained that the

law operated in an “unusually disproportionate

manner” by imposing severe burdens on a particular

class of property owners. Id. at 537. Similarly, in

Hodel v. Irving, 481 U.S. 704 (1987), the Court

invalidated a law that abrogated Native Americans’

rights to pass on small fractional land interests,

explaining that the right to transfer property is a core

property right. Id. at 716–17.

Like the laws in E. Enterprises and Hodel,

California’s “EV mandate” would uniquely burden a

specific property interest—royalties—to the point of

potentially extinguishing their values. The ability to

extract and sell oil and gas is the core economic benefit

of property ownership.

A regulatory scheme aimed at erasing that

value is a “regulatory taking” if ever there was one,

and at a minimum raises serious constitutional

concerns. Armstrong v. United States, 364 U.S. 40, 49

(1960) (the Takings Clause “was designed to bar

Government from forcing some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.”).

V.

THE WAIVER AND “EV MANDATE”

RAISE MAJOR QUESTIONS.

Although the lower court did not reach the

merits, it is worth pointing out that this case

implicates the major-questions doctrine. Courts

16

should not defer reflexively to agency statutory

interpretations on questions of vast “economic and

political significance” absent clear congressional

authorization. West Virginia v. EPA, 597 U.S. 697, 721

(2022) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S.

302, 324 (2014)). By letting California unilaterally

destroy demand for oil, the EPA has made a policy

judgment of immense significance.

The “EV mandate” would be enormously

consequential in economic and political terms. It

would fundamentally transform the Nation’s

transportation sector by phasing out the internalcombustion engines that have powered motor vehicles

for over a century. And it is a direct assault on the oil

and gas industry, threatening the livelihoods of

thousands of businesses and workers across the

country. With nearly 15 million vehicles sold annually

in California and the states that follow California’s

standards, companies throughout the liquid-fuel

supply chain—from the wellhead to the gas pump—

will feel severe economic pain. See California New Car

Dealers Ass’n, Cal. New Vehicle Registrations

Predicted to Exceed 1.9 Million Units in 2022 (Feb.

2022), https://www.cncda.org/wp-content/uploads/CAAuto-Outlook-4Q-2021.pdf. The “EV mandate” would

also profoundly affect consumers, increasing vehicle

prices and limiting choice for millions of Americans

who prefer liquid-fuel-powered cars and trucks.

But the lower court’s merits-avoidance

approach closes the courthouse doors to any “major

questions” challenge. Why do these few unelected

federal and state actors get to impose a nationwide

policy change? The lower court would have no answer

for that other than, “Because the challengers provided

17

evidence of their injuries but we want even more

evidence from third parties.” That is just an untenable

approach to nationwide legislation and policy.

“[T]he Constitution does not authorize agencies

to use pen-and-phone regulations as substitutes for

laws passed by the people’s representatives.” West

Virginia, 597 U.S. at 753 (Gorsuch, J. concurring).

Letting California dictate national fuel-economy

policy and run roughshod over property rights would

enable a dramatic “expansion of [] regulatory

authority [based on] vague language” that is

inconsistent with the separation of powers. Id. at 700.

Reasonable minds might differ as to the

ultimate merits of the EPA’s waiver. But holding that

the petitioners and other injured entities cannot even

bring their challenges—despite the weighty issues

involved, the cumulative interests at stake, and the

evidence and self-evident natures of those injuries—

would turn standing doctrine on its head.

The Court should take this case and reaffirm

that injured plaintiffs can show redressability without

proving definitively and with evidentiary certainty

how all relevant third parties would respond to a

favorable ruling. By letting the lower court’s decision

stand without review, the Court would slam the

courthouse doors to those injured by government

overreach.

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VI.

THE

D.C.

CIRCUIT

ERRED

BY

ADDRESSING MOOTNESS DISGUISED

AS REDRESSABILITY.

Finally, the D.C. Circuit’s decision conflated

mootness and redressability in a manner that allowed

the court to avoid addressing exceptions to mootness.

The court held that the short time remaining on the

challenged waiver meant that vacatur would not

redress the petitioners’ injuries. But this reasoning

improperly disguised a mootness analysis as a

redressability inquiry.

Had the court directly addressed mootness, it

would have been compelled to consider wellestablished exceptions to mootness, such as the

capable-of-repetition doctrine. See Kingdomware

Techs., Inc. v. United States, 579 U.S. 162, 170 (2016).

This case falls squarely within that exception.

By dodging the mootness question, the D.C.

Circuit has enabled the EPA to evade judicial review

of its waiver authority for years to come. Even if a new

administration were to change course, the underlying

legal question could remain unresolved for the

foreseeable future. All the while, regulated entities

and royalty owners would continue to suffer injury

from EPA overreach without any opportunity for

redress in court.

This Court should intervene to correct the

lower court’s error and ensure that the judiciary

remains available to check unlawful agency action.

Regulated parties should not be denied their day in

court by a decision that blends redressability and

mootness to preclude consideration of controlling legal

19

principles. The Court should grant certiorari to

address this important issue and preserve the vital

role of the courts in our constitutional system.

CONCLUSION

For the foregoing reasons, TRC and ARC

respectfully ask this Court to grant the petition for a

writ of certiorari.

Respectfully submitted,

Ivan L. London

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

August 7, 2024

Attorneys for Amici Curiae

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