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 FUELS, 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 THE TWO HUNDRED

FOR HOMEOWNERSHIP AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

Rafe Petersen

Counsel of Record

Jennifer L. Hernandez

Brian C. Bunger

Holland & Knight LLP

800 17th Street, N.W., Suite 1100

Washington, D.C. 20006

202-419-2481

Rafe.Petersen@hklaw.com

Jennifer.Hernandez@hklaw.com

Brian.Bunger@hklaw.com

Counsel for Amicus Curiae

The Two Hundred for

Homeownership

August 7, 2024

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF THE AMICUS

CURIAE ........................................................ 1

SUMMARY OF ARGUMENT............................. 3

ARGUMENT ....................................................... 6

I.

THE ADVANCED CLEAN CARS

REGULATION IMPOSES DISPARATE

CONSEQUENCES ON LOW-INCOME

COMMUNITIES AND COMMUNITIES OF

COLOR. ......................................................... 6

CONCLUSION .................................................. 17

ii

TABLE OF AUTHORITIES

Page(s)

Statutes

Clean Air Act

§ 177, 42 U.S.C. § 7507 .............................. 3, 5

§ 209, 42 U.S.C. § 7543(b).................... 4, 5, 17

§ 209(b), 42 U.S.C. § 7543(b) ......................... 3

Other Authorities

83 Fed. Reg. 42986 (September 27,

2019) ............................................................... 4

2022 Summer Reliability Assessment,

North American Electric Reliability

Corporation, May 2022 ................................ 14

Assembly Bill 1745: Clean Cars 2040

Act (2017-2018) .............................................. 8

California Air Resources Board’s 2022

Scoping Plan For Achieving Carbon

Neutrality, November 16, 2022 ..................... 3

California Energy Commission, 2021-

2023 Investment Plan Update for

the Clean Transportation Program,

December 17, 2021 ................................. 11, 13

iii

California Energy Commission,

California Electric Vehicle

Infrastructure Deployment

Assessment: Senate Bill 1000 Report

Increasing Access to Electric Vehicle

Infrastructure for All, December

2020 ........................................................ 11, 12

California Energy Commission, Electric

Vehicle Chargers in California

Dashboard .................................................... 12

California Public Utilities Commission,

2019 Annual Affordability Report,

April 2021....................................................... 9

California Public Utilities Commission,

Order Instituting Rulemaking to

Continue Electric Integrated

Resource Planning and Related

Procurement Processes, Decision

Adopting 2021 Preferred System

Plan, Decision No. 22-02-004, Feb.

10, 2022 ........................................................ 10

Executive Order N-79-20, September

23, 2020 .......................................................... 8

Impact of the Advanced Clean Cars II

(Internal Combustion Engine Ban)

Regulation on California Businesses,

Capitol Matrix Consulting, May 17,

2022 .......................................................... 7, 14

iv

Michael Manville et al., Vehicle access

and falling transit ridership:

evidence from Southern California.

TRANSPORTATION, February 3, 2022 .............. 7

Mirko Rubeis et al., Is There A Future

For Service Stations?, Boston

Consulting Group, July 12, 2019. ............... 15

Oils and Gas in California: The

Industry, Its Economic Contribution

and User Industries at Risk in 2017,

Los Angeles County Economic

Development Corporation, July 2019 ......... 15

Peter Behr and Jason Plautz, Grid

monitor warns of U.S. blackouts in

'sobering report,' E&E NEWS, May

19, 2022 ........................................................ 14

Peter Manzo et al., Struggling to Move

Up: The Real Cost Measure in

California 2021, United Ways of

California, July 2021 ..................................... 6

Possible Market Implications of

California's Efforts to Ban Internal

Combustion Engines (ICE),

Stillwater Associates, February 9,

2022 ...................................................... 7, 8, 14

v

Severin Borenstein et al., Paying for

Electricity in California: How

Residential Rate Design Impacts

Equity and Electrification, NEXT10,

ENERGY INSTITUTE AT HAAS,

September 2022 ....................................... 9, 10

Sup. Ct. R. 37.2 ................................................... 1

Sup. Ct. R. 37.6 ................................................... 1

U.S. Convenience Store Count, National

Association of Convenience Stores,

January 19, 2022 ......................................... 15

U.S. Department of Energy, Office of

Energy Efficiency and Renewable

Energy, Fuel Economy Landing

Page for 2021 Toyota Corolla. ..................... 12

U.S. Energy Information

Administration, Electric Power

Monthly, February 2022 ................................ 9

U.S. EPA, Environmental Justice,

https://www.epa.gov/environmentalj

ustice (last visited August 5, 2024) ............... 6

1

STATEMENT OF INTEREST OF THE AMICUS

CURIAE

Amicus

curiae,

The Two Hundred for

is

a

California-based

unincorporated association of community leaders,

opinion makers, and advocates working in California

and elsewhere on behalf of low-income minorities who

are affected by California’s housing crisis and

increasing wealth gap.

The Two Hundred is

committed to increasing the supply of housing to

levels that support its affordability to California’s

hardworking families, and to restoring and enhancing

home ownership by minorities so that minority

communities can also benefit from the family

stability, enhanced educational attainment over

multiple generations, and improved family and

individual health outcomes that white homeowners

have long taken for granted. The Two Hundred

includes civil rights advocates who each have four or

more decades of experience in protecting the civil

Homeownership 1,

Amicus curiae states that on July

26, 2024, more than 10 days prior to the date responses are due,

Counsel for amicus curiae notified all counsel of record as of that

date of their intent to file this brief. Pursuant to Sup. Ct. R. 37.6,

Amicus curiae states that no counsel for a party authored this

brief in whole or in part and no party or counsel for a party has

made a monetary contribution intended to fund the preparation

or submission of this brief. The California Business Roundtable

provided a monetary contribution intended to fund the

preparation and submission of this brief. Otherwise, no person

or entity other than Amicus curiae or their counsel has made a

monetary contribution intended to fund the preparation or

submission of this brief.

1 Pursuant to Sup. Ct. R. 37.2,

2

rights of our communities against unlawful conduct

by government agencies and businesses.

For many decades, the Two Hundred have

watched with dismay decisions by government

bureaucrats

that

discriminate

against

and

disproportionately harm minority communities. The

Two Hundred have battled this discrimination for

entire careers. In litigation and political action, The

Two Hundred have worked to force government

bureaucrats to reform policies and programs that

included blatant racial discrimination – by, for

example, denying minority veterans college and home

loans and benefits that were available to white

veterans, and promoting housing segregation as well

as preferentially demolishing homes in minority

communities. The Two Hundred have also learned

the hard way that California’s purportedly liberal,

progressive

environmental

regulators

and

environmental advocacy group lobbyists are as

oblivious to the needs of minority communities, and

are as supportive of ongoing racial discrimination in

their policies and practices, as many of their banking,

utility and insurance bureaucratic peers.

Most relevant to the present matter, The Two

Hundred have in recent years been forced to confront

the reality that California’s state-wide air pollution

regulator, the Air Resources Board is pursuing

approaches that discriminate against California’s

low-income and minority communities—purportedly

in service of addressing climate change. In its 2022

Scoping Plan for Achieving Carbon Neutrality (2022

Scoping Plan) published in December 2022, the Air

Resources Board finally admitted that its climate

3

policies, including those mandating increasing

market share for zero emission vehicles, will decrease

the income of those earning less than $100,000 a year,

which is disproportionately made up of ethnic

minorities. 2

The Two Hundred support the quality of the

California environment and the need to protect and

improve public health in our communities. The Two

Hundred do not and never have dismissed the

importance of climate change. The Two Hundred are

not opposed to Zero-Emission Vehicles. The Two

Hundred take the position that waivers should be

granted to California under Clean Air Act § 209(b), 42

U.S.C. § 7543(b) in appropriate circumstances. For

example, a waiver should allow the Air Resources

Board to adopt more stringent criteria pollutant

standards to address “compelling and extraordinary

conditions” such as severe smog. The Two Hundred

also agree that other states should be able to

implement those standards when EPA grants

waivers, under Clean Air Act § 177, 42 U.S.C. § 7507.

Indeed, The Two Hundred are keenly aware that

waivers granted to California in the past have

resulted in extraordinary progress against pollution

problems in California that once seemed intractable.

SUMMARY OF ARGUMENT

California’s original Advanced Clean Cars

regulation has a twisted and winding history. In

2 California Air Resources Board’s 2022 Scoping Plan For

Achieving Carbon Neutrality, November 16, 2022, at 125-126,

https://ww2.arb.ca.gov/sites/default/files/2022-12/2022-sp.pdf.

4

2008, during the George W. Bush administration, the

United States Environmental Protection Agency

(“EPA”) denied a waiver requested by California

under Clean Air Act § 209, 42 U.S.C. § 7543(b) for the

first time.

The Obama administration EPA

subsequently reversed that decision. The Obama

administration then negotiated with California and

developed a set of unified greenhouse gas and tailpipe

standards for other pollutants applicable to both

California and the federal motor vehicle emission

control program. California retained authority to

develop more stringent emission standards, but not to

mandate a single, one-size-fits-all, vehicular engine

technology. In 2013, EPA granted a waiver for the

greenhouse gas standards and zero-emission vehicle

mandates that are part of the Advanced Clean Cars

regulation that had been adopted by California’s

state-wide air regulator, the California Air Resources

Board. In 2019, the Trump EPA withdrew the 2013

waiver as part of its promulgation of a joint EPA and

National Highway Traffic Safety Administration

rulemaking. The rule effectuating this withdrawal is

known as Part 1 of the of the Safer Affordable FuelEfficient Vehicles Rule, which established “One

National Program” (covering fuel efficiency and

greenhouse gas standards). 3 The One National

Program was intended to eliminate California’s

separate standards and establish one federally

preemptive set of standards for all vehicles sold

nationally.

In 2022, EPA rescinded the 2019

3 The

Safer Affordable Fuel-Efficient Vehicles Rule Part One:

One National Program, 83 Fed. Reg. 42986 (September 27,

2019)(codified at 40 C.F.R. pts. 85 and 86 and at 49 C.F.R. pts.

531 and 533).

5

withdrawal of the waiver and withdrew its legal

interpretation from the Part 1 rule that contended

states could not adopt the California greenhouse gas

standards under Clean Air Act § 177 even when

California had a valid waiver. The direct appeal of

EPA’s waiver decision that was the subject of the case

below followed.

Until the past decade, California regulatory

efforts like those described above blazed a trail

followed by California as well as the many states that

have followed its lead under Clean Air Act § 177 that

incrementally, but very successfully, addressed air

pollution emissions without unduly burdening vehicle

manufacturers, and more importantly for present

purposes, consumers. Unfortunately, recent efforts

by the Air Resources Board, including the underlying

California rule-making at issue here, have strayed far

from that path. As discussed below, California’s

adoption of the Advanced Clean Cars regulation failed

to address its discriminatory effects and was thus

arbitrary and capricious. EPA’s grant of a Clean Air

Act § 209 waiver for the Advanced Clean Cars

regulation perpetuates that discrimination. In fact,

EPA’s most recent waiver decision, like the related

decisions that came before it, fundamentally ignores

the very principles and policies of environmental

justice that EPA consistently purports to set forth.

Despite EPA’s efforts to establish and implement

environmental justice policies that support, in the

words of EPA, “fair treatment and meaningful

involvement of all people regardless of race, color,

6

national origin, or income,” 4 these efforts have been

woefully insufficient to address the scale and severity

of disproportionate environmental impact in the

United States. This waiver decision is yet another

example of EPA’s blatant disregard for fair treatment

and equity in the implementation of its

environmental policies. Thus, the Court should grant

certiorari to review the merits and reverse EPA’s

grant of the waiver.

ARGUMENT

I.

THE ADVANCED CLEAN CARS REGULATION

IMPOSES DISPARATE CONSEQUENCES ON

LOW-INCOME

COMMUNITIES

AND

COMMUNITIES OF COLOR.

As documented by United Ways of California, the

Public Policy Institute of California, and several other

impartial research institutions, California has an

acute

poverty

and

housing

crisis

which

disproportionately impacts our communities of color. 5

Of course, obtaining housing requires income.

Obtaining income requires a job. Keeping a job

requires showing up regularly and on time. Lowincome workers need and use cars to get to work, even

in transit-served areas like Los Angeles, where 33

times more jobs can be accessed by car in 30 minutes

EPA,

Environmental

Justice,

https://www.epa.gov/environmentaljustice (last visited August

5, 2024).

5 See e.g., Peter Manzo et al., Struggling to Move Up: The Real

Cost Measure in California 2021, United Ways of California,

July 2021, https://www.unitedwaysca.org/realcost.

4 U.S.

7

than can be accessed by a 30 minute transit ride. 6 In

the vast majority of California communities, cars are

the only practical transportation option to get to work

on time. Anything that affects the availability of

affordable and reliable (or at least repairable) cars

causes a detrimental impact on the ability of lowincome and minority community members to obtain

and maintain jobs.

The Advanced Clean Cars

regulation represents an attack on exactly those

lower cost (and low emission) personal vehicles.

Many low-income families cannot afford electric

vehicles. As a memo from Capitol Matrix Consulting

notes, the incremental cost for a zero emission vehicle

compared to a vehicle with an internal combustion

engine is well over $10,000 for smaller vehicles and

well over $20,000 for high end sedans, sport utility

vehicles, and pickup trucks. 7 Stillwater Associates

similarly observed that low-income families purchase

far fewer new cars, because it is less expensive to

repair used cars when needed. 8 They also concluded

6 Michael Manville et al., Vehicle access and falling transit

ridership: evidence from Southern California. TRANSPORTATION,

February 3, 2022, at Table 2.

7 “Today, the incremental cost for a ZEV compared to an ICE

vehicle with similar features, capabilities, and range is well over

$10,000 for small vehicles, and well over $20,000 for high-end

sedans, SUVs, and pickup trucks.” Impact of the Advanced Clean

Cars II (Internal Combustion Engine Ban) Regulation on

California Businesses, Capitol Matrix Consulting, May 17, 2022,

at 3, https://www.arb.ca.gov/lists/com-attach/477-accii2022AHcAdQBxBDZSeVc2.pdf (Exhibit E of Comments on Advanced

Clean Cars II Regulation Initial Statement of Reasons (ISOR)

Documents by Western States Petroleum).

8 Possible Market Implications of California’s Efforts to Ban

Internal Combustion Engines (ICE), Stillwater Associates,

February 9, 2022, at 31, https://stillwaterassociates.com/wp-

8

that as new cars become more expensive, low-income

families will be priced out of the market. 9

Despite these facts, the Advanced Clean Cars

regulation mandates sales of increasing percentages

of costly electric (mostly) and other “zero” emission

vehicles, which for most affected low-income and

minority community members would be impractical

even if they were affordable. 10 There are several

reasons for this:

First, residential electricity prices in California

are already almost double the national average and

projected to rise. 11 Low-income and disadvantaged

content/uploads/2022/06/Stillwater-ICE-Ban-Analysis-FinalPUBLIC.pdf.

9

Id.

10 The

Advanced Clean Cars regulation mandates that a

minimum of 35% of vehicles sold in California must be “zero”

emission by model year 2026. Were that the end of the story, the

situation might not be catastrophic. Unfortunately, we now

know it was only the opening salvo in the Air Resources Board’s

war on vehicles with internal combustion engines. Subsequent

to the adoption of the Advanced Clean Cars regulation,

California Governor Gavin Newsom signed Executive Order N79-20 mandating a complete ban on vehicles with internal

combustion engines by 2035. Executive Order N-79-20,

September 23, 2020. This is despite the fact that the legislature

had already rejected such a ban that would have started in 2040.

See Assembly Bill 1745: Clean Cars 2040 Act (2017-2018). The

Air Resources Board dutifully followed the Governor’s lead and

included a complete ban on vehicles with internal combustion

engines in its Advanced Clean Cars II regulation and climate

change Scoping Plan. See State of California Air Resources

Board Advanced Clean Cars II Regulations, Resolution 22-12,

August 25, 2022.

11 In February 2022, the average residential electricity rate in

California was $0.2559 per kilowatt-hour, versus a national

9

communities already spend a disproportionate

amount of their income on essential utilities,

including electricity. In its 2019 Annual Affordability

Report, the California Public Utilities Commission,

the state’s utility regulator, reported that “13 percent

of households in the state are located where lowincome households pay more than 15 percent of their

disposable income on electricity service.” 12 In

addition, several areas in the state, including Los

Angeles, Chico, parts of the San Joaquin Valley, and

parts of the San Francisco Bay Area, spend

significantly higher amounts “indicating that lowincome households in these areas spend a very large

percentage of their non-disposable income on

electricity.” 13 Indeed, a recent analysis conducted and

published by economists at the UC Berkeley Energy

Institute at the Haas School of Business concluded

that California’s electric rate structure that adds

variable costs to electricity rates for things like

compensating victims of wildfires and alleviating the

burdens of high electricity prices on low-income

residents results in adding a “tax” of about $600 to the

annual cost of operating an electric vehicle. 14 Of

average of $0.1383. U.S. Energy Information Administration,

Electric

Power

Monthly,

February

2022,

https://www.eia.gov/electricity/monthly/epm_table_grapher.php

?t=epmt_5_6_a.

12 California

Public Utilities Commission, 2019 Annual

Affordability Report, April 2021, at 11, https://www.cpuc.ca.gov//media/cpuc-website/industries-and-topics/reports/2019-annualaffordability-report.

13

Id.

Paying for Electricity in California:

How Residential Rate Design Impacts Equity and

Electrification, NEXT10, ENERGY INSTITUTE AT HAAS, September

14 Severin Borenstein et al.,

10

course, this “tax” falls most heavily on California’s

lowest-income households. 15

Increasing electrification of the transportation

sector will require significant infrastructure to

support increased electricity demands and deploy

charging facilities. The California Public Utilities

Commission estimates that meeting additional

demand alone will require an investment of $49

billion in resources, which will be recovered through

further increases in the already high utility rates. 16

As a result, the cost of electricity alone could make

electric vehicles impractical for low-income and

minority community members, even with rebates for

purchase of the vehicles and expanded charging

infrastructure.

Second, the Advanced Clean Cars regulation does

not take account of, or provide mitigations for, the

significantly limited access to charging stations for

low-income community members, many of whom will

need access to public charging stations because they

may not have the space or permission from a landlord

necessary to install an electric vehicle charger in their

home or apartment. Without access to an adequate

2022,

https://www.next10.org/sites/default/files/202209/Next10-paying-for-electricity-final-comp.pdf.

15 Id. at p. 5, Figure ES 1 (showing that the lowest income

families must pay the highest percentage of their annual income

for electricity, compared to higher income families).

16 California Public Utilities Commission, Order Instituting

Rulemaking to Continue Electric Integrated Resource Planning

and Related Procurement Processes, Decision Adopting 2021

Preferred System Plan, Decision No. 22-02-004, Feb. 10, 2022,

https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M451/K

412/451412947.PDF.

11

supply of public charging stations, no amount of

rebates to assist with purchases of electric vehicles

will be sufficient.

As more electric vehicles are deployed, building

sufficient chargers to support them will require

substantial additional investments. The California

Energy Commission has reported that charging

infrastructure buildout to support the Advanced

Clean Cars regulation zero emission vehicle mandate

has already fallen well behind the pace needed to

meet the 2025 target of 240,000 chargers. 17

Beyond the issue of general charger availability,

studies have shown that disadvantaged and lowincome communities do not enjoy the same access to

electric vehicle charging infrastructure, exacerbating

economic and practical burdens for these vulnerable

groups. The California Energy Commission’s 2020

Senate Bill 1000 Report on Equitable Distribution of

Charging Infrastructure found that public vehicle

chargers are unevenly distributed across the state’s

air quality control districts, noting that relatively

more chargers appear in census tracts with low

population density, and that low-income communities

2021–2023 Investment Plan

Update for the Clean Transportation Program, December 17,

17 California Energy Commission,

2021, https://www.energy.ca.gov/publications/2021/2021-2023investment-plan-update-clean-transportationprogram#:~:text=This%202021%E2%80%932023%20investmen

t%20plan%20establishes%20funding%20allocatio%20ns%20bas

ed%20on,by%20the%20COVID%2D19%20pandemic.

12

on average have the fewest public Level 2 chargers

and other chargers per capita. 18

Many individuals, and in particular low-income

populations, who are unable to charge vehicles at

their homes – for example, those residing in

apartment complexes, multi-family homes, or homes

that otherwise only have street parking – will have to

rely on publicly available Level 2 and DC fast

chargers. It is the members of these communities

that will have to travel disproportionately long

distances to use such chargers.

Of the 80,000 public and shared private electric

vehicle chargers in California, 90 percent are Level 2

chargers. 19 In order to travel 120 miles, a driver of a

2021 Nissan Leaf would need to charge for over 6

hours at a Level 2 public charging station. This could

cost between $15.78 and $29.54 ($0.13 and $0.25/mi,

respectively), depending on time of use and location

within the state. By comparison, at a gasoline price

of $6 per gallon, the same driver would spend fewer

than 5 minutes and $0.18/mi to fuel a 2021 Toyota

Corolla. 20 The popular sentiment, that electric

Energy Commission, California Electric Vehicle

Infrastructure Deployment Assessment: Senate Bill 1000 Report

Increasing Access to Electric Vehicle Infrastructure for All,

18 California

December 2020.

19 California Energy Commission,

California

Dashboard,

Electric Vehicle Chargers in

https://www.energy.ca.gov/datareports/energy-almanac/zero-emission-vehicle-andinfrastructure-statistics/electric-vehicle.

20 The 2021 Toyota Corolla has a combined fuel economy of 33

miles per gallon. U.S. Department of Energy, Office of Energy

Efficiency and Renewable Energy, Fuel Economy Landing Page

for

2021

Toyota

Corolla,

13

vehicles are less expensive to own and drive, clearly

is not true for drivers that lack access to home

chargers. Even were public chargers readily available

in disadvantaged communities, the time and cost

burdens of using them render electric vehicles an

impractical alternative for community members that

must rely on Level 2 chargers.

Additionally, DC Fast Charging Stations do not

present a better solution for low-income and

disadvantaged communities.

Members of these

communities have some of the longest drive times

from community centers to the nearest publiclyaccessible DC Fast Charging Station. 21 These

chargers also tend to be more expensive to use and

degrade batteries at an increased rate.

Third, California, at least, continues to confront

electrical grid reliability issues. The state has faced

and will continue to face outages caused by extreme

heat, wildfires, and drought. With increasing reliance

on renewable generation, especially wind and solar,

California also faces reliability issues due to power

inverters that serve solar and wind farms not being

able to “ride-through” short term disturbances such

as those that occurred on four separate occasions in

https://www.fueleconomy.gov/feg/bymodel/2021_Toyota_Corolla

.shtml.

21 California Energy Commission, 2021–2023 Investment Plan

Update for the Clean Transportation Program, December 17,

2021, 42-44, https://www.energy.ca.gov/publications/2021/20212023-investment-plan-update-clean-transportationprogram#:~:text=This%202021%E2%80%932023%20investmen

t%20plan%20establishes%20funding%20allocatio%20ns%20bas

ed%20on,by%20the%20COVID%2D19%20pandemic.

14

2021. 22

For community members with electric

vehicles that lack back-up power, a loss of electricity

means a loss of personal mobility and an inability to

get to and from work or school, secure food or obtain

medical attention.

Fourth, as deployment of electric vehicles

increases, demand for vehicle fuels sold at gas

stations will significantly decrease, likely causing

many to close. This will result in fewer fueling

stations for owners of vehicles with internal

combustion engines, who are more likely to be lowincome, 23 and will cause such vehicle owners to drive

further in search of fuel. Boston Consulting Group

has estimated that a rapid market uptake of electric

vehicles could cause up to 80 percent of the retail fuel

See Peter Behr and Jason Plautz, Grid monitor warns of U.S.

blackouts in ‘sobering report,’ E&E NEWS, May 19, 2022, https://

22

www.eenews.net/articles/grid-monitor-warns-of-u-s-blackoutsin-sobering-report/ and 2022 Summer Reliability Assessment,

North American Electric Reliability Corporation, May 2022,

https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments

%20DL/NERC_SRA_2022.pdf.

Possible Market Implications of California’s Efforts to Ban

Internal Combustion Engines (ICE), Stillwater Associates,

23

February 9, 2022, at 31, https://stillwaterassociates.com/wpcontent/uploads/2022/06/Stillwater-ICE-Ban-Analysis-FinalPUBLIC.pdf; see also Impact of the Advanced Clean Cars II

(Internal Combustion Engine Ban) Regulation on California

Businesses, Capitol Matrix Consulting, May 17, 2022, at 3,

https://www.arb.ca.gov/lists/com-attach/477-accii2022AHcAdQBxBDZSeVc2.pdf (Exhibit E of Comments on Advanced

Clean Cars II Regulation Initial Statement of Reasons (ISOR)

Documents by Western States Petroleum).

15

market to become unprofitable by 2035. 24 If these

trends continued, many of the 100,000 gas stations

throughout the nation would be at risk of going out of

business. 25 Low-income rural areas, which already

have fewer gas stations and longer drives to reach

them than urban areas, will likely be most negatively

impacted.

Fifth, declining fuel sales will result in the loss of

high-wage industry jobs in the fuels sector. A 2019

report found that the oil and gas sector supports

nearly 366,000 jobs and paid workers nearly $26

billion in wages in California alone. 26 Additionally, in

rural areas the oil and gas industry can contribute

substantially to the local economy. For example, in

California’s Modoc County, the oil and gas industry

contributed $2.5 million to the local economy in

2017. 27 Although California officials have committed

to address these employment and economic impacts,

it does not appear any progress has yet been made.

The Advanced Clean Cars regulation does not

consider, much less address these clearly disparate

Is There A Future For Service Stations?,

Boston

Consulting

Group,

July

12,

2019,

https://www.bcg.com/publications/2019/service-stations-future.

25 See U.S. Convenience Store Count, National Association of

January

19,

2022,

Convenience

Stores,

https://www.convenience.org/Research/FactSheets/IndustryStor

eCount.

24 Mirko Rubeis et al.,

Oils and Gas in California: The Industry, Its Economic

Contribution and User Industries at Risk in 2017, Los Angeles

26

County Economic Development Corporation, July 2019, at 84,

https://laedc.org/2019/08/27/oil-and-gas-industry-in-california2019-report/.

27 Id. at 50.

16

and discriminatory impacts on low-income and

minority community members. Rather than promote

more affordable vehicle alternative technologies, such

as hybrids that offer substantial opportunities for

more cost-effective greenhouse gas emission

reductions that work in the current vehicle fleet, the

Advanced Clean Cars regulation mandates only

electric vehicles with the result that at least millions

of dollars of legacy technology and infrastructure will

go to waste. The Advanced Clean Cars regulatory

process entirely failed to account for substantial

economic impacts to individuals in general and to

vulnerable communities in particular that will result

from accelerated vehicle fleet electrification. This

failure renders the original adoption of the rule and

EPA’s approval of a waiver permitting its

implementation arbitrary and capricious.

17

CONCLUSION

For the foregoing reasons, Amicus curiae

urge this Court to grant certiorari and review

and reverse EPA’s grant of the § 209 waiver for the

Advanced Clean Cars regulation.

Respectfully submitted,

Rafe Petersen

Counsel of Record

Jennifer L. Hernandez

Brian C. Bunger

Holland & Knight LLP

800 17th Street, N.W., Suite 1100

Washington, D.C. 20006

202-419-2481

Rafe.Petersen@hklaw.com

Jennifer.Hernandez@hklaw.com

Brian.Bunger@hklaw.com

Counsel for Amicus Curiae

The Two Hundred for Homeownership

August 7, 2024