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.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF WESTERN STATES PETROLEUM

ASSOCIATION, AMERICAN TRUCKING ASSOCIATIONS,

INC., NATIONAL FEDERATION OF INDEPENDENT

BUSINESS, INC., CALIFORNIA ASPHALT PAVEMENT

ASSOCIATION, OREGON FUELS ASSOCIATION,

WASHINGTON OIL MARKETERS ASSOCIATION,

CALIFORNIA FUELS & CONVENIENCE ALLIANCE,

ARIZONA PETROLEUM MARKETERS ASSOCIATION,

AND NEVADA PETROLEUM MARKETERS &

CONVENIENCE STORE ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Katherine C. Yarger

Counsel of Record

LEHOTSKY KELLER

COHN LLP

700 Colorado Blvd.,

#407

Denver, CO 80206

(512) 693-8350

katie@lkcfirm.com

Counsel for Amici Curiae

Gabriela Gonzalez-Araiza

LEHOTSKY KELLER

COHN LLP

200 Massachusetts Ave.,

NW, Suite 700

Washington, DC 20001

TABLE OF CONTENTS

Table of Authorities .................................................. ii

Interest of Amici Curiae ........................................... 1

Summary of Argument ............................................. 4

Argument .................................................................. 6

I. The D.C. Circuit’s opinion muddles both

redressability and mootness doctrines. ......... 6

A. The D.C. Circuit set an unduly high bar

for Petitioners to demonstrate

redressability. ........................................... 8

B. The D.C. Circuit’s opinion engenders

confusion between redressability and

mootness. ................................................. 11

C. The D.C. Circuit’s erroneous decision

erects increasingly high standing obstacles

for parties challenging federal regulations.

15

II. This Court should review the merits and

vacate the waiver granted to California. ..... 19

Conclusion .............................................................. 24

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) ............................................. 7

Ala. Ass’n of Realtors v. HHS,

594 U.S. 758 (2021) ........................................... 20

Competitive Enter. Inst. v. NHTSA,

901 F.2d 107 (D.C. Cir. 1990) ............................. 9

Corner Post, Inc. v. Bd. of Governors of Fed.

Rsrv. Sys.,

144 S. Ct. 2440 (2024) ................................... 8, 19

Dep’t of Com. v. New York,

588 U.S. 752 (2019) ....................................... 9, 10

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ......................................... 7, 8

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc.,

528 U.S. 167 (2000) ..................................... 11, 12

Gregory v. Ashcroft,

501 U.S. 452 (1991) ........................................... 19

iii

In re: MCP No. 189, National Highway

Traffic Safety Administration,

Department of Transportation, Corporate

Average Fuel Economy Standards for

Passenger Cars and Light Trucks for

Model Years 2027 and Beyond and Fuel

Efficiency Standards for Heavy-Duty

Pickup Trucks and Vans for Model Years

2030 and Beyond (6th Cir.)......................... 16, 20

Iowa v. Granholm,

No. No. 24-01721 (8th Cir.)............................... 16

Kentucky v. EPA,

No. 24-1087 (D.C. Cir.) ..................................... 16

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ........................................... 18

Louie v. Dickson,

964 F.3d 50 (D.C. Cir. 2020) ............................. 12

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................. 7, 12, 13

Maldonado v. D.C.,

61 F.4th 1004 (D.C. Cir. 2023) ................... 12, 15

Murthy v. Missouri,

144 S. Ct. 1972 (2024) ....................................... 12

Narragansett Indian Tribal Historic Pres.

Off. v. FERC,

949 F.3d 8 (D.C. Cir. 2020) ............................... 14

iv

National Resources Defense Council v.

NHTSA,

No. 22-1080 (D.C. Cir.) ..................................... 16

Nebraska v. EPA,

No. 24-1129 (D.C. Cir.) ..................................... 16

Ohio v. EPA,

98 F.4th 288 (D.C. Cir. 2024)

................................................... 10, 11, 14, 17, 18

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................... 8

Super Tire Eng’g Co. v. McCorkle,

416 U.S. 115 (1974) ........................................... 15

Texas v. EPA,

No. 22-1031 (D.C. Cir.) ..................................... 16

U.S. Forest Serv. v. Cowpasture River Pres.

Ass’n,

590 U.S. 604 (2020) ........................................... 19

United States v. Washington,

596 U.S. 832 (2022) ..................................... 12, 15

West Virginia v. EPA,

597 U.S. 697 (2022)

....................................... 12, 14, 15, 19, 20, 21, 22

Western States Trucking Ass’n v. EPA,

No. 23-1143 (D.C. Cir.) ..................................... 16

Statutes

42 U.S.C. § 7543(b) ................................................. 22

v

49 U.S.C. § 32902(b)(3) .......................................... 17

Other Authorities

73 Fed. Reg. 12156, 12160 (Mar. 6, 2008) ............. 23

Anh Bui & Peter Slowik, Market Spotlight:

Electric Vehicle Market and Policy

Developments in U.S. States, 2023, The

International Council on Clean

Transportation (June 4, 2024),

https://perma.cc/EG6N-3MW2.................... 16, 17

David R. Wooley & Elizabeth M. Morss,

Clean Air Act Handbook: A Practical

Guide to Compliance § 5:38 (33d ed.

2023) .................................................................. 23

Exec. Order 14037, 86 Fed. Reg. 43583

(Aug. 5, 2021) .................................................... 16

Stephen Breyer, Judicial Review of

Questions of Law and Policy, 38 ADMIN.

L. REV. 363, 370 (1986) ..................................... 20

U.S. Const. art. III.................................................... 7

Zero-Emission Vehicles Act of 2018, S. 3664,

115th Cong. ....................................................... 21

Zero-Emission Vehicles Act of 2019, H.R.

2764, 116th Cong. ............................................. 21

Zero-Emission Vehicles Act of 2019, S. 1487,

116th Cong. ....................................................... 21

vi

Zero-Emission Vehicles Act of 2020, H.R.

8635, 116th Cong. ............................................. 21

Zero-Emission Vehicles Act of 2020, S. 4823,

116th Cong. ....................................................... 21

INTEREST OF AMICI CURIAE

Western States Petroleum Association (WSPA) is

a non-profit trade association that represents a large

portion of the petroleum exploration, production, refining, transportation, and marketing companies in

Arizona, California, Nevada, Oregon, and Washington.1 Founded in 1907, WSPA is dedicated to ensuring that Americans continue to have reliable access

to petroleum and petroleum products through policies that are socially, economically, and environmentally responsible.

American Trucking Associations, Inc. (ATA), is

the national association of the trucking industry. Its

direct membership includes approximately 2,400

trucking companies and in conjunction with 50 affiliated state trucking organizations, it represents over

30,000 motor carriers of every size, type, and class of

motor carrier operation. The motor carriers represented by ATA haul a significant portion of the

freight transported by truck in the United States and

virtually all of them operate in interstate commerce

among the states. ATA regularly represents the common interests of the trucking industry in courts

throughout the nation, including this Court.

The National Federation of Independent Business, Inc. (NFIB) is the nation’s leading small business association. NFIB’s mission is to promote and

protect the right of its members to own, operate, and

1 In accordance with Rule 37.6, no counsel for any party has

authored this brief in whole or in part, and no person or entity,

other than amici or their counsel, has made a monetary contribution to the preparation or submission of this brief. Counsel of

record received timely notice of the intent to file this brief pursuant to Rule 37.2.

(1)

2

grow their businesses. NFIB represents, in Washington, D.C., and all 50 state capitals, the interests of its

members. An affiliate of NFIB, the NFIB Small Business Legal Center, Inc. (NFIB Legal Center) is a nonprofit, public interest law firm established to provide

legal resources and be the voice for small businesses

in the nation’s courts through representation on issues of public interest affecting small businesses. To

fulfill its role as the voice for small business, the

NFIB Legal Center frequently files amicus briefs in

cases that will impact small businesses.

California Asphalt Pavement Association is a

nonprofit trade association that represents members

of the asphalt pavement industry in California. The

industry is a primary consumer of liquid asphalt, a

petroleum-based product that is produced as part of

the oil refining process. Because there is no alternative for liquid asphalt, any reduction or elimination

of the availability of this product as an indirect result

of California’s emissions standards will severely

harm the industry. It will disrupt the ability of local,

state, and federal agencies—the industry’s largest

customers—to build and maintain roads and highways. Beyond impacting the 15,735 men and women

employed in manufacturing asphalt pavement mixtures, California’s standards will put at risk the

343,000 American jobs involved in the construction

of that infrastructure.

The Oregon Fuels Association (OFA) is the voice

of Oregon’s locally-owned fuel stations, fuel distributors, and heating oil providers. OFA members are at

the forefront of environmental stewardship within

the industry as the leading suppliers of biodiesel and

other low carbon fuels. Often multi-generational,

3

family-owned businesses, members fuel Oregon’s

economy by providing career opportunities to thousands of employees across the state. OFA is a leading

advocate for common sense regulations that balance

affordable fuels and environmental stewardship.

Washington Oil Marketers Association (WOMA)

is a nonprofit trade association with individual and

corporate members that market petroleum products

in Washington State and associate members that sell

products and services that support the petroleum industry. WOMA members account for nearly 80% of

all petroleum products sold in Washington State, including 68,000,000 gallons of heating oil to residential and industrial users. WOMA is the only association in Washington State that focuses on all aspects

of the petroleum marketing industry and monitors

legislative and regulatory issues involving fuel, energy, alcohol, tobacco, transportation, the environment, and the state budget and taxes. WOMA also

lobbies on behalf of petroleum marketers and oil heat

dealers with state government agencies and the legislature in Olympia and stays engaged with related

state and national associations.

The California Fuels and Convenience Alliance

(CFCA) is the industry’s statewide trade association

representing the needs of small and minority wholesale and retail marketers of gasoline, diesel, lubricating oils, motor fuels products, and alternative fuels,

including but not limited to, hydrogen, compressed

natural gas, ethanol, renewable and biodiesel, and

electric charging stations; transporters of those products; and retail convenience store operators.

Since 1967, the Arizona Petroleum Marketers Association (APMA) has been the state’s leading trade

4

association representing the petroleum marketing,

convenience store and related industries. APMA’s

primary purpose is to protect and advance its members’ legislative and regulatory interests in the

state’s and nation’s capitols.

The Nevada Petroleum Marketers & Convenience

Store Association (NPM&CSA) is a statewide trade

association that represents an extensive membership

of liquid fuel and lubricant distributors, transporters, retailers, and convenience store owners. The fuel

distribution, transportation, retailing, and convenience industry are critical components of Nevada’s

economy with stations and stores in every county.

Nevada has more than 1229 C-stores employing more

than 18,000 employees. Annual gross sales are more

than $4.7 billion with fuel sales accounting for $2.6

billion.

SUMMARY OF ARGUMENT

This case forms part of a sprawling constellation

of regulatory challenges addressing increasingly

stringent regulations of internal combustion

vehicles. These include regulations promulgated by

California and authorized by the Environmental

Protection Agency’s (EPA’s) Clean Air Act waivers,

EPA’s own tailpipe emission standards, and the

National Highway Traffic Safety Administration’s

(NHTSA’s) corporate average fuel economy

standards.

Petitioners, like amici and their members, stand

to be injured by California’s regulations, which will

indisputably reduce the demand for liquid fuels. But

despite numerous active and ongoing cases

challenging the regulations, the D.C. Circuit has

5

continuously dodged ruling on the merits. Here it did

so by manipulating standing doctrine.

The D.C. Circuit’s opinion engenders confusion in

two primary ways.

First, it sets a rigid standard for Petitioners to

prove redressability. The court rejected Petitioners’

arguments that their injuries would be redressed by

vacatur of the waiver in light of the “predictable” and

indeed intended “effects” of EPA’s waiver. Instead,

the court demanded a much stronger showing of

evidence from regulated entities that they would

alter their behavior in response to a favorable ruling

from the court.

Second, the court conflated redressability and

mootness doctrines. The court focused on the time

that had elapsed since the start of the litigation, and

the remaining regulatory timeframe, and concluded

there was insufficient time for the requested relief to

have any effect. But the court labeled this inquiry,

which is quintessential mootness, as one of

redressability. In doing so, it not only ignored

important details attendant to each distinct doctrine,

but it also flipped the burden of proof from

Respondents to Petitioners. And worse still, since

Petitioners

had

demonstrated

that

car

manufacturers could and would alter their behavior

if the court ruled in their favor, the court’s conclusion

was also incorrect.

These errors create significant obstacles to

standing in other contexts. If left undisturbed, it

incentivizes agencies to regulate in short timeframes

that are set to expire before a court may render a

decision. And it also prompts questions about how

the court’s analysis here fits in with industries

6

requiring long lead times to reach regulatory

compliance.

Moreover, this Court should grant the petition to

review the merits of EPA’s Clean Air Act waiver here,

which authorizes California to regulate global

greenhouse gas emissions.

The issues presented are poised to recur as

challenges to EPA and NHTSA’s next set of vehicle

regulations are already under way in the D.C. Circuit

and the Sixth Circuit. Left uncorrected, the court’s

decision below may hinder these regulatory

challenges such that a court may never reach the

merits of these important questions.

ARGUMENT

I. The D.C. Circuit’s opinion muddles both redressability and mootness doctrines.

As explained by Petitioners, the D.C. Circuit departed from Supreme Court precedent and its own

prior decisions when it imposed a barrier to merits

review based on an improperly stringent and novel

standard for demonstrating redressability. Rather

than allowing Petitioners to show standing from the

“determinative or coercive effect” of EPA’s Advanced

Clean Cars I waiver, the court demanded proof that

any decision in Petitioners’ favor would cause directly regulated entities to alter their plans. See

Pet.15-21. So although a petitioner may usually rely

on the “predictable effect” of regulation on third parties to establish causation and redressability, see Pet.

16-17, the D.C. Circuit here required Petitioners to

obtain evidence from the directly regulated entities

themselves. See Pet.20-21. In so doing, the court also

7

improperly entangled the concepts of redressability

and mootness.

Under Article III of the Constitution, an “affected

party” seeking to challenge federal agency action in

federal court must establish that there is an actual

“case or controversy” for the court to resolve. U.S.

Const. art. III. Under the longstanding three-part

test for standing, a party must demonstrate that it

has suffered (1) an injury in fact; (2) that is “fairly

traceable” to the agency’s action; and (3) that is redressable by favorable judicial relief. Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations marks and alterations omitted). Causation

and redressability are “flip sides of the same coin”:

“If a defendant’s action causes an injury, enjoining

the action or awarding damages for the action will

typically redress that injury. So the two key questions in most standing disputes are injury in fact and

causation.” FDA v. All. for Hippocratic Med., 602 U.S.

367, 380-81 (2024) (citation omitted).

In the context of challenges to agency rulemaking,

the quintessential injury-in-fact from an agency’s

rule is the imposition of compliance costs directly on

the party or industry challenging the regulation. See

Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 (1967)

(There is a “basic presumption of judicial review” under the APA for parties who have been “adversely affected or aggrieved by agency action.” (citation and

quotation marks omitted)). “[T]he Court has [also]

identified a variety of familiar circumstances where

government regulation of a third-party individual or

business may be likely to cause injury in fact to an

unregulated plaintiff.” All. for Hippocratic Med., 602

U.S. at 384-85 (emphasis added) (collecting cases).

8

An unregulated party may assert an injury from “upstream” or “downstream” effects of the regulation for

others involved, like manufacturers, retailers, or customers. Id.; see also Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 144 S. Ct. 2440, 2460 (2024)

(Kavanaugh, J., concurring) (“An unregulated plaintiff . . . [may] challenge an allegedly unlawful agency

rule that regulates others but also has adverse downstream effects on the [unregulated party].”). Actions

brought by unregulated parties are a class of “historically common and vitally important litigation

against federal agencies.” Corner Post, 144 S. Ct. at

2469 (Kavanaugh, J., concurring).

In the decision below, the D.C. Circuit created a

nearly impossible burden. First, the court distorted

the redressability requirement by demanding that

unregulated parties prove how third parties will react to a favorable decision on the merits. Second, the

court muddled the distinction between standing and

mootness by lodging in redressability a determination that sounds in mootness. Together, these twin

errors make standing prohibitively difficult for unregulated parties to prove.

A. The D.C. Circuit set an unduly high bar for

Petitioners to demonstrate redressability.

The D.C. Circuit reconfigured standing doctrine

by imposing an ill-considered and unworkable requirement that unregulated plaintiffs must prove

how third parties would react to a favorable decision

on the merits.

Ordinarily, a plaintiff establishes that its injuries

are redressable by showing “a likelihood that the requested relief will redress the alleged injury.” Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103

9

(1998). Unregulated entities—whose injuries depend

in part on the actions of regulated third parties—may

rely on “the predictable effect of Government action

on the decisions of third parties” to demonstrate redressability. Dep’t of Com. v. New York, 588 U.S. 752,

768 (2019). For example, in Competitive Enterprise

Institute v. NHTSA, 901 F.2d 107 (D.C. Cir. 1990), a

consumer group petitioned the D.C. Circuit for review of the NHTSA’s fuel economy standards for passenger cars. Petitioners argued that NHTSA’s rule

demanding greater fuel efficiency hindered the ability of its members to “buy larger passenger vehicles.”

Id. at 112. Respondents argued petitioners failed to

show redressability because manufacturers may not

necessarily respond to a court decision by producing

larger vehicles. Id. at 116-17. But the D.C. Circuit

pointed to “past experience” showing that manufacturers do respond to lower fuel efficiency standards

by producing larger vehicles and that consumer demand was in favor of larger vehicles so manufacturers would probably respond to those “market forces”

to “meet that consumer demand.” Id. at 117. Indeed,

“an entire line of cases finds redressability [in] . .

. circumstances turning on third-party conduct that

is voluntary but reasonably predictable.” Competitive

Enter. Inst., 970 F.3d at 384; see id. at 381-82 (collecting cases).

Petitioners adequately demonstrated that the

third-party conduct necessary to alleviate their injury was a “reasonably predictable” result of a favorable ruling. California’s Advanced Clean Cars program would mandate that car manufacturers produce fewer vehicles that consume liquid fuel. Petitioners (who produce liquid fuel) indicated that their

10

injury (reduced demand for liquid fuel) would be mitigated by a favorable ruling vacating EPA’s authorization of California’s Advanced Clean Cars program.

Petitioners supported redressability with “over a

dozen declarations by individuals who are affiliated

with Fuel Petitioner entities and organizations . . . explain[ing] that the entity or organization

is involved with producing or selling fuel and that the

waiver causes Fuel Petitioners economic injury by reducing the demand for fuel and related products.”

Ohio v. EPA, 98 F.4th 288, 301 (D.C. Cir. 2024).

Nonetheless, the D.C. Circuit dismissed their petition for lack of standing, concluding that they failed

to demonstrate “a ‘substantial probability’ . . . that

automobile manufacturers are likely to respond to a

decision by this Court by changing their fleets in a

way that alleviates their injuries in some way.” Id. at

302 (citation omitted).

Rather than allowing Petitioners to rely on the

“predictable effects” of the rule, the D.C. Circuit demanded “record evidence,” or “additional affidavits”

“affirmatively demonstrating that vacatur of the

waiver would be substantially likely to result in any

change to automobile manufacturers’ vehicle fleets

by Model Year 2025.” Dep’t of Com., 588 U.S. at 768;

Ohio v. EPA, 98 F.4th at 300, 302-03, 305. In other

words, the court expected Petitioners to obtain definitive evidence from the regulated car manufacturers

that they would alter their production, pricing, and

distribution in response to a favorable court decision.

This requirement is as unnecessary as it is unrealistic.

As Petitioners explain, the D.C. Circuit failed to

acknowledge evidence that Petitioners’ harms would

11

be redressed through the predictable effects of a favorable decision on third parties’ conduct and did not

respond to caselaw supporting this approach. See

Pet. 20. Instead, the court imposed a novel evidentiary requirement—demanding Petitioners to adduce

evidence from the regulated party, who participated

as intervenor-respondents in the litigation. Id. This

onerous requirement asks far too much of unregulated parties, who need only demonstrate that the

third-party conduct necessary to mitigate their injuries is “reasonably predictable.”

B. The D.C. Circuit’s opinion engenders confusion between redressability and mootness.

Although the D.C. Circuit couches its holding in

redressability, its analysis seems to confuse redressability and mootness. Because of the unique role the

D.C. Circuit plays in adjudicating administrative law

cases, the confusion the court has engendered carries

greater weight.

In the first half of the court’s redressability analysis, it concluded that Petitioners failed to prove that

car manufacturers would alter their production, pricing, and distribution in the event of a favorable ruling. In the second half, the court determined that Petitioners failed to show, as of the time of the court’s

decision, that “manufacturers would do so relatively

quickly—by Model Year 2025,” even though Petitioners filed their petition for review in May 2022. Ohio

v. EPA, 98 F.4th at 302 (emphasis added).

With some exceptions, mootness is “the doctrine

of standing set in a time frame.” Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,

189 (2000) (citation omitted). Because of this

12

characterization, lower courts sometimes “conflate[]

[the] Court’s case law on initial standing, with its

case law on mootness.” Id. at 174. The two doctrines

are closely related but distinct. “It is the doctrine of

mootness, not standing, that addresses whether an

intervening circumstance has deprived the plaintiff

of a personal stake in the outcome of the lawsuit.”

West Virginia v. EPA, 597 U.S. 697, 719 (2022)

(cleaned up) (citation omitted). But “[a] case is not

moot . . . unless it is impossible for [the Court] to

grant any effectual relief.” United States v. Washington, 596 U.S. 832, 837 (2022) (cleaned up) (emphasis

added) (citation omitted). Thus, “the heavy burden of

proving mootness falls with the party asserting a

case is moot.” Maldonado v. D.C., 61 F.4th 1004, 1006

(D.C. Cir. 2023) (emphasis added) (internal quotation

marks and citation omitted).

So while standing asks whether a party has “[t]he

requisite personal interest that must exist at the

commencement of the litigation,” mootness asks

whether that personal interest “continue[s] throughout [the] existence [of the litigation].” Laidlaw, 528

U.S. at 189 (emphasis added) (internal quotation

marks and citations omitted); Louie v. Dickson, 964

F.3d 50, 54 (D.C. Cir. 2020).2 And while a plaintiff

bears the burden of establishing the elements of

2 This Court’s standing doctrine contains additional confu-

sion stating both that standing is assessed at the outset of litigation and that each element of standing must be supported

“with the manner and degree of evidence required at the successive stages of the litigation.” Murthy v. Missouri, 144 S. Ct.

1972, 1986 (2024) (emphasis added) (citing Lujan, 504 U.S. at

561). Granting the Petition would provide an opportunity to

clarify this confusion.

13

standing, Lujan, 504 U.S. at 560-61, the party asserting mootness (typically the defendant) bears the burden of proving a case is moot.

Here, it seems the D.C. Circuit conflated the doctrines of standing and mootness, and confused their

respective burdens, by mislabeling a mootness question as a redressability one.

As explained by Petitioners, EPA did not contest

Petitioners standing, but California and other state

and local intervenors did so in their briefing, arguing

that Petitioners had not shown that “manufacturers

would change course if EPA’s decision were vacated.”

Pet.11 (quoting C.A. California Br. 13-15). Then, at

oral argument, counsel for state and local intervenors reiterated this same assertion but argued it as

a matter of mootness. Pet.12.

Petitioners moved to file supplemental briefing

and supplemental declarations demonstrating further that the matter was not moot. Id. These declarations included statements from individuals like

Walter Kreucher, who worked at Ford for over thirty

years on regulatory compliance. Id.; C.A. Pet. Standing Addendum, Kreucher Decl. ¶ 1; see also C.A. Pet.

Standing Addendum, Modlin Decl. ¶ 1 (over forty

years’ experience working in emissions and fuel economy regulatory compliance at Chrysler). Kreucher

explained that “if California’s vehicle [greenhouse

gas] emission and [zero-emission vehicle] standards

were to be eliminated or made less stringent, automobile manufacturers could and likely would change

their production, pricing, and/or distribution plans

for Model Year 2025 as late as December 2025.” C.A.

Pet. Standing Addendum, Kreucher Decl. ¶ 5; see

also C.A. Pet. Standing Addendum, Modlin Decl. ¶ 5

14

(same). The D.C. Circuit, however, refused to consider this information since it framed the issue in

terms of redressability. Ohio v. EPA, 98 F.4th at 306.

The court then proceeded to evaluate the “redressability” issue with a mootness analysis. The court

asked whether, given the short regulatory timeframe

remaining, car manufacturers might still have time

to alter their behavior. Id. at 302-303. Because manufacturers could or would no longer change their production, pricing, and distribution, the court concluded Petitioners no longer had an injury that would

be remedied by the court’s decision. Id. at 303-04.

And the court made this assessment, not as of the

time the litigation commenced, but at the time of its

decision. See, e.g., id. at 302 (“Petitioners fail to point

to any evidence affirmatively demonstrating that vacatur of the waiver would be substantially likely to

result in any change to automobile manufacturers’

vehicle fleets by Model Year 2025.”); see also e.g., id.

(stating that petitioners failed to show “that automobile manufacturers would [respond to a decision by

this Court by changing their fleets] relatively

quickly—by Model Year 2025”).

In short, the court asked whether an “intervening

circumstance,” i.e., the passage of time since the Advanced Clean Cars waiver was granted, rescinded,

and reinstated, had rendered Petitioners claims

moot. West Virginia v. EPA, 597 U.S. at 719.

The D.C. Circuit’s error is problematic for at least

three reasons. First, courts already tread carefully on

the distinction between standing and mootness, and

the D.C. Circuit’s opinion blurs that carefully drawn

line. See, e.g., Narragansett Indian Tribal Historic

Pres. Off. v. FERC, 949 F.3d 8, 12 (D.C. Cir. 2020)

15

(citation omitted) (holding that a question about redressability “may sound like [a question about] mootness” but finding the proper inquiry was one of standing in light of the timing—namely that the question

arose at the time the action commenced). Second, by

deciding on standing rather than mootness, the court

liberated Respondents of their “heavy burden” to

prove mootness. Maldonado, 61 F.4th at 1006. And

third, the court dismissed a question that is still live.

This Court has explained that if resolution of an issue has the potential to affect future behavior, then

the question is not moot. Super Tire Eng’g Co. v.

McCorkle, 416 U.S. 115 (1974) (determining that a

case was not moot even though the strike upon which

the action was based had ended because a federal

court decision could substantially affect future labormanagement negotiations); see also West Virginia v.

EPA, 597 U.S. at 719-20 (declining to “dismiss [the]

case as moot” because the Government could reimpose the regulation at issue); Washington, 596 U.S.

at 837 (“A case is not moot . . . unless it is impossible

for [the Court] to grant any effectual relief.”) (cleaned

up) (emphasis added)).

C. The D.C. Circuit’s erroneous decision

erects increasingly high standing obstacles for parties challenging federal regulations.

Left uncorrected, the D.C. Circuit’s opinion creates a variety of unintended consequences. Most immediately, the decision erects a redressability obstacle for the many unregulated petitioners actively

challenging vehicle regulations in other cases in the

circuit courts. Looking forward, the D.C. Circuit’s

reasoning creates a perverse incentive for agencies to

16

regulate seriatim in shorter and shorter timeframes.

And even beyond the realm of vehicle regulations, the

court’s decision below could affect regulatory challenges in industries with similar timeframes.

The D.C. Circuit’s opinion creates confusion for

ongoing regulatory challenges in related cases. Petitioners in this case, along with other similarly unregulated parties, have filed petitions for review against

EPA and NHTSA regulations governing vehicle

emissions and fuel economy.3 These regulations are

intended to help meet the Biden Administration’s

stated goal that “50 percent of all new passenger cars

and light trucks sold in 2030 be zero-emission vehicles.” Exec. Order 14037, 86 Fed. Reg. 43583 (Aug. 5,

2021), Strengthening American Leadership in Clean

Cars and Trucks.4 The directly regulated vehicle

3 See, e.g., Kentucky v. EPA, No. 24-1087 (D.C. Cir.) (“Multi-

Pollutant Emissions Standards for Model Years 2027 and Later

Light-Duty and Medium-Duty Vehicles”); Nebraska v. EPA, No.

24-1129 (D.C. Cir.) (state challenge to EPA’s “Greenhouse Gas

Emissions Standards for Heavy-Duty Vehicles—Phase 3”); In

re: MCP No. 189, National Highway Traffic Safety Administration, Department of Transportation, Corporate Average Fuel

Economy Standards for Passenger Cars and Light Trucks for

Model Years 2027 and Beyond and Fuel Efficiency Standards

for Heavy-Duty Pickup Trucks and Vans for Model Years 2030

and Beyond, Fed. Reg. 52540, Published on June 24, 2024 (6th

Cir.); Western States Trucking Ass’n v. EPA, No. 23-1143 (D.C.

Cir.) (California’s Advanced Clean Trucks waiver); Iowa v.

Granholm, No. No. 24-01721 (8th Cir.) (petroleum equivalency

factor used to calculate fuel economy standards); see also Texas

v. EPA, No. 22-1031 (D.C. Cir.) (emissions standards for Model

Years 2023-2026); National Resources Defense Council v.

NHTSA, No. 22-1080 (D.C. Cir.) (fuel economy standards for

Model Years 2024-2026).

4 For reference, in 2023, new electric vehicles constituted

9% of sales in the United States. Anh Bui & Peter Slowik,

17

manufacturers have yet to come forward as challengers. But petitioners, including parties like the fuel

producers in this case, are directly affected by the

government’s concerted effort to reduce the consumption of liquid fuels and continue to challenge these

regulations.

The D.C. Circuit’s ruling could also incentivize

agencies to regulate in short intervals to obstruct judicial review. In this case, the short regulatory

timeframe remaining was key to the court’s determination that Petitioners’ injury was not redressable.

EPA reinstated California’s waiver for Advanced

Clean Cars in March 2022, which reactivated California’s Advanced Clean Cars program for Model

Years 2017 through 2025. Ohio v. EPA, 98 F.4th at

298. Petitioners filed their petition for review in May

2022 with over three years remaining in the regulatory timeframe. In the decision below, the court relied, in part, on the erroneous conclusion that since

Model Year 2025 was the final year of the waiver, car

manufacturers would be unable to change production, pricing, and distribution before the regulatory

period ended. Id. at 302-03.

As a result of the court’s opinion, agencies could

intentionally structure rules to evade review by making “unredressably” short timeframes. To illustrate,

by statute the NHTSA must set “average fuel economy standards for passenger and non-passenger automobiles . . . for at least 1, but not more than 5,

model years.” See, e.g., 49 U.S.C. § 32902(b)(3). If

Market Spotlight: Electric Vehicle Market and Policy Developments in U.S. States, 2023, The International Council on Clean

Transportation (June 4, 2024), https://perma.cc/EG6N-3MW2.

18

NHTSA were to opt for the minimum timeframe—

one year—the regulatory period could be complete

before a court renders its decision. Based on the timing, potential challengers would be consistently foreclosed from bringing suit.5

As a final illustration, the D.C. Circuit’s opinion

could also hinder regulatory challenges for any type

of industry with lead time for regulatory compliance,

not just car manufacturers. In denying the redressability of Petitioners’ injuries, the court placed great

weight on the fact that car manufacturers “need

years of lead time to make changes to their future

model year fleets.” Ohio v. EPA, 98 F.4th at 302. And

given the regulatory time frame, the court concluded

that manufacturers would have too little “time to alter their product plans.” Id. at 302.

Consequently, other (highly regulated) industries

seeking to challenge agency regulations could face a

steep impediment to standing. Implementation of

virtually every regulatory burden requires lead time

and planning. Under the court’s holding here, petitions for review will continually face an obstacle to

standing based on the requisite time-period required

to plan and comply and, in some circumstances, the

5 This point also illustrates that the D.C. Circuit’s timing

analysis addressed an issue of mootness, not redressability. If

such agency gamesmanship were to occur, a court could apply

its exception to mootness to hear a case that is “capable of repetition, yet evading review.” Kingdomware Techs., Inc. v.

United States, 579 U.S. 162, 170 (2016); see also id. (“That exception applies . . . where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action again.”

(cleaned up) (citation omitted)).

19

dwindling time horizon of the regulation itself. Petition for review will be too late, since industries trying

to predict and prepare for regulatory action will be

too far along for their injuries to be redressable.

The D.C. Circuit’s opinion risks “clos[ing] the

courthouse doors on . . . unregulated plaintiffs—a

radical change to administrative law that would insulate a broad swath of agency actions from any judicial review.” See Corner Post, 144 S. Ct. at 2463

(Kavanaugh, J., concurring).

II. This Court should review the merits and vacate the waiver granted to California.

Because EPA’s grant of the waiver here allows

California to “assert[] highly consequential power beyond what Congress could reasonably be understood

to have granted [in the Clean Air Act],” the case implicates the major-questions doctrine. West Virginia

v. EPA, 597 U.S. at 724. Under the doctrine, courts

must review “assertions of extravagant statutory

power . . . with skepticism,” especially where “the

history and the breadth of the authority that the

agency has asserted, and the economic and political

significance of that assertion, provide a reason to

hesitate before concluding that Congress meant to

confer such authority.” Id. at 721, 724 (cleaned up)

(emphasis added).6

6 An agency action also implicates a major political question

if it “would upset the usual constitutional balance of federal and

state powers.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). In

this sense, the major-questions doctrine is similar to the federalism canon—that Congress must “enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power.” U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n, 590 U.S. 604, 622-23 (2020); see West Virginia v.

20

The Court has noted that an issue is economically

significant where an agency claims, for example,

“power over a significant portion of the American

economy.” Id. at 722 (internal quotation marks omitted).

And the Court has found issues to be of major political significance when the agency claims the power

“to adopt a regulatory program that Congress had

conspicuously and repeatedly declined to enact itself”; the issue “has been the subject of an earnest

and profound debate across the country,” id. at 724,

732 (internal quotation marks and citations omitted);

or the agency action “intrudes into an area that is the

particular domain of state law,” Ala. Ass’n of Realtors

v. HHS, 594 U.S. 758, 764 (2021) (per curiam). No

single factor is necessary, but all factors here point

in the same direction: the decision to allow California

to force a nationwide shift in new sales from gas-powered vehicles to electric vehicles implicates a major

question. Cf. Stephen Breyer, Judicial Review of

Questions of Law and Policy, 38 ADMIN. L. REV. 363,

370 (1986) (“A court may also ask whether the legal

question is an important one. Congress is more likely

to have focused upon, and answered, major questions, while leaving interstitial matters to answer

themselves in the course of the statute’s daily administration.”).

EPA, 597 U.S. at 744 (Gorsuch, J., concurring) (“[T]he major

questions doctrine and the federalism canon often travel together.”). EPA’s reading of Section 209(b) would improperly

give California authority, shared with no other state, to overhaul the national vehicle and fuel industries to address an inherently global phenomenon.

21

Here, the vast economic impact of the section

209(b) waiver on the automobile and energy industries cannot be overstated. As relevant to amici, California’s standards will indisputably harm the petroleum industry, placing hundreds of thousands of

jobs—and billions of dollars in tax revenue—at risk.

See Br. of Amici Curiae Western States Petroleum

Ass’n et al., Ohio v. EPA, No. 22-1081 (D.C. Cir.) at

1. Downstream industries will also suffer. The asphalt industry, for example, is reliant on oil refining

for liquid asphalt, a petroleum-based product. See id.

at 2-3. And if petroleum production is curtailed, the

industry will be unable to meet its commitments to

supply those who pave America’s roads. See id.

Again, hundreds of thousands of jobs nationwide are

on the line, not to mention core elements of this country’s infrastructure. See id. at 3.

There are two primary ways the waiver implicates

questions of major political significance as well.

First, the agency has “adopt[ed] a regulatory program that Congress ha[s] conspicuously and repeatedly declined to enact itself.” West Virginia v. EPA,

597 U.S. at 724. Congress has considered and rejected (multiple times) legislation authorizing EPA to

establish an electric vehicle mandate. See, e.g., ZeroEmission Vehicles Act of 2020, S. 4823, 116th Cong.

(2020); Zero-Emission Vehicles Act of 2020, H.R.

8635, 116th Cong. (2020); Zero-Emission Vehicles

Act of 2019, S. 1487, 116th Cong. (2019); Zero-Emission Vehicles Act of 2019, H.R. 2764, 116th Cong.

(2019); Zero-Emission Vehicles Act of 2018, S. 3664,

115th Cong. (2018).

Second, the waiver is politically significant because electrification of America’s vehicle fleet “has

22

been the subject of an earnest and profound debate

across the country.” West Virginia v. EPA, 597 U.S.

at 732 (internal quotation marks and citation omitted). One need only open a newspaper or social media

to see this debate playing out in real time.

When the major-questions doctrine applies, the

agency must point to a clear statement by Congress

for the authority it claims. It is not enough that the

agency’s interpretation is textually “plausible.” West

Virginia, 597 U.S. at 723 (emphasis added). And general, “modest,” or “vague” language will not do either.

Id. EPA cannot point to a clear congressional statement that would authorize it to “grant[] California,

alone among the States, the ability to set vehicleemission standards to combat global climate change.”

Pet.14.

As the Petition and briefs of other amici ably explain, the statutory language EPA relies on here does

not authorize the waiver.

The Clean Air Act authorizes the waiver for California only where the State “need[s] such State

standards to meet compelling and extraordinary conditions.” 42 U.S.C. § 7543(b). EPA does not even try

to claim that the standards are “needed” to reduce

global greenhouse gas emissions as EPA admits the

standards will have little to no effect, though of

course it knows the effect they will have on auto manufacturing and sales. And global emissions are by no

means “compelling and extraordinary” for California. As EPA Administrator Stephen L. Johnson recognized in denying California’s first greenhouse gas

emissions regulation waiver, the standards are distinguishable because they do not address local or regional air pollution problems as the standards have

23

in every waiver since 1984. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California’s 2009 Greenhouse Gas Emissions Standards for

New Motor Vehicles, 73 Fed. Reg. 12156, 12160 (Mar.

6, 2008). See also David R. Wooley & Elizabeth M.

Morss, Clean Air Act Handbook: A Practical Guide to

Compliance § 5:38 (33d ed. 2023) (noting that 2007

was the first time EPA denied California a waiver because “climate change is a national problem that requires a national solution,” though EPA then

changed course two more times, granting the waiver

in 2009 and then revoking it in 2019).

Administrator Johnson argued that the factors

considered in the past to establish “compelling and

extraordinary conditions,” such as the unique “geography and climate of California, and the large motor

vehicle population in California,” do not perform the

same causal function for greenhouse gas emissions.

73 Fed. Reg. at 12160. This is because those “elevated

atmospheric concentrations of greenhouse gases . .

. are well-mixed throughout the global atmosphere,

such that their concentrations over California and

the U.S. are, for all practical purposes, the same as

the global average.” Id. Thus, California greenhouse

gas emissions do not affect California any differently

than those same emissions from or in any other part

of the world.

24

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Gabriela Gonzalez-Araiza

LEHOTSKY KELLER

COHN LLP

200 Massachusetts Ave.,

NW, Suite 700

Washington, DC 20001

Katherine C. Yarger

Counsel of Record

LEHOTSKY KELLER

COHN LLP

700 Colorado Blvd., #407

Denver, CO 80206

(512) 693-8350

katie@lkcfirm.com

Counsel for Amici Curiae

AUGUST 2024