Amicus Curiae Brief — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.

No. 24-7

In the

Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

Brief Of Amici Curiae Advancing American

Freedom; Richard A llen, JCCWatch.org; AMAC

Action; American Constitutional Rights Union;

American Encore; American Energy Institute;

(For Continuation of Midline See Inside Cover)

J. Marc Wheat

Counsel of Record

Timothy Harper (A dmitted in DC)

A dvancing A merican Freedom, Inc.

801 Pennsylvania Avenue, N.W.

Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@

advancingamericanfreedom.com

August 7, 2024

Counsel for Amici Curiae

130279

A

(800) 274-3321 • (800) 359-6859

American Land Rights Association; American Lands

Council; Americans for Limited Government;

American Securities Association; American

Values; Saulius “Saul” A nzius, President, The

American Association of Senior Citizens; E. Calvin

Beisner , Ph.D., President, Cornwall A lliance

for the Stewardship of Creation; Shawnna

Bolick, Arizona State Senator , District 2; Center

for Political Renewal; Daniel Darling; Eagle

Forum; JoA nn Fleming, Executive Director ,

Grassroots America-We the People PAC; Freedom

Foundation of Minnesota; Frontline Policy

Council; Representative Steven E. Galloway,

District 24, Montana House of Representatives;

Charlie Gerow; A llen J. Hebert, Chairman,

American-Chinese Fellowship of Houston; Idaho

Freedom Foundation; International Conference

of Evangelical Chaplain Endorsers; Tim Jones ,

Fmr. Speaker , Missouri House, Chairman, Missouri

Center-Right Coalition; James L. Martin, Founder/

Chairman, 60 Plus Association; Men and Women

for a Representative Democracy in A merica , Inc.;

National Center for Public Policy Research;

Project Sentinel; Project 21 Black Leadership

Network; Rio Grande Foundation; Pamela S.

Roberts, Immediate Past President- K entucky

Federation of Republican Women; Setting Things

Right; Stand for Georgia Values Action; Strategic

Coalitions & Initiatives, LLC; Tradition, Family,

and Property, Inc.; Truth in Energy and Climate;

Women for Democracy in America, Inc.; Young

America’s Foundation; and Young Conservatives of

Texas In Support of Petitioners

i

QUESTIONS PRESENTED

1. Whether a party may establish the redressability

component of Article III standing by relying on the

coercive and predictable effects of regulation on third

parties.

2. Whether EPA’s preemption waiver for California’s

greenhouse-gas emission standards and zero-emissionvehicle mandate is unlawful.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST OF

AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

The EPA’s Granting of an Exemption to

California Under the CAA Implicates the

Major Questions Doctrine . . . . . . . . . . . . . . . . . . . 7

II. The EPA’s Granting of a Preemption

Wa i ver t o Ca l i for n i a i n t h i s Ca se

is Not Based on a Clear Statement of

Authority from Congress . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Alabama Assn. of Realtors v. Dep’t of Health

and Hum. Servs.,

594 U.S. 758 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Am. Auto. Mfrs. Ass’n v. Comm’r,

Mass. Dept. of Env’t Prot.,

998 F. Supp. 10 (D. Mass. 1997) . . . . . . . . . . . . . . . . . . 3

Chamber of Com. of U.S. v. EPA,

642 F.3d 192 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . 3, 11

Chevron U.S.A. Inc. v.

Natural Res. Def. Council,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Ford Motor Co. v. EPA,

606 F.2d 1293 (D.C. Cir. 1979) . . . . . . . . . . . . . . . . . . . 3

Loper Bright Enters. v. Raimondo,

No. 22-451 (June 28, 2024) . . . . . . . . . . . . . . . . . . . . . . 6

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., OSHA,

595 U.S. 109 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

iv

Cited Authorities

Page

Ohio v. EPA,

No. 22-1081, slip op. (D.C. Cir. April 9, 2024) . . . . . . 12

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

West Virginia v. EPA,

597 U.S. 697 (2022) . . . . . . . . . . 6, 7, 8, 9, 10, 12, 13, 14

STATUTES, REGULATIONS AND

OTHER AUTHORITIES

42 U.S.C. § 7521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 7521(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 7543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 7543(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 7543(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12

42 U.S.C. § 7543(b)(1)(A)-(C) . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 7543(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

v

Cited Authorities

Page

42 U.S.C. § 7543(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

49 U.S.C. § 32902(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

49 U.S.C. § 32919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cal. Code Regs. Tit. 13, § 1961.2(a) . . . . . . . . . . . . . . . . 13

Cal. Code Regs. Tit. 13, § 1961.3(a)(2)(B)-(C) . . . . . . . . 13

H.R. Rep. No. 90-728 (1967) . . . . . . . . . . . . . . . . . 3, 12, 13

H.R. Rep. No. 95-294 (1977) . . . . . . . . . . . . . . . . . . . . . . . 3

California State Motor Vehicle Pollution Control

Standards; Notice of Decision Denying a Waiver

of Clean Air Act Preemption for California’s

2009 and Subsequent Model Year Greenhouse

Gas Emission Standards for New Motor

Vehicles, 73 Fed. Reg. 12156 (Mar. 6, 2008) . . . . . 5, 14

California State Motor Vehicle Pollution Control

Standards; Notice of Decision Granting a Waiver

of Clean Air Act Preemption for California’s 2009

and Subsequent Model Year Greenhouse Gas

Emission Standards for New Motor Vehicles,

74 Fed. Reg. 32744 (July 8, 2009) . . . . . . . . . . . . . 5, 14

vi

Cited Authorities

Page

California State Motor Vehicle Pollution Control

Standards; Notice of Decision Granting a Waiver

of Clean Air Act Preemption for California’s

Advanced Clean Car Program and a Within

the Scope Confirmation for California’s Zero

Emission Vehicle Amendments for 2017 and

Earlier Model Years, 78 Fed. Reg. 2112 (Jan. 9,

2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14

California State Motor Vehicle Pollution Control

Standards; Advanced Clean Car Program;

Reconsideration of a Previous Withdrawal

of a Waiver of Preempti o n ; Notice of

Decision, 87 Fed. Reg. 14332 (Mar. 14, 2022) . . . 5, 15

California Air Resources Board, States that Have

Adopted California’s Vehicle Regulations

(Ju n e 2 0 2 4), ht t p s : // w w 2 . a r b . c a . g o v/

our-work /programs/advanced-clean-carsprogram/states-have-adopted-californiasvehicle-regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

The Federalist No. 10 at 47 (James Madison)

(George W. Carey and James McClellan,

eds., The Liberty Fund 2001) . . . . . . . . . . . . . . . . . . . 3

The Federalist No. 17 at 80 -81 (A lexander

Hamilton) (George W. Carey and James

McClellan, eds., The Liberty Fund 2001) . . . . . . . . . 3

vii

Cited Authorities

Page

Edwin J. Feulner, Jr., Conservatives Stalk the House:

The Story of the Republican Study Committee,

212 (Green Hill Publishers, Inc. 1983) . . . . . . . . . . . . 1

Neil Gorsuch, Janie Nitze, Over Ruled: The

Human Toll of Too Much Law 90 (2024) . . . . . . . . 4, 8

Dan McLaughlin, U-Haul Literally Ran Out

of Tr ucks Leaving Califor nia, National

Review (Jan. 14, 2022 11:23A M) https://

w w w.nationalrev iew.com /cor ner/u-haulliterally-ran-out-of-trucks-leaving-california/ . . . . . .6

The Safer Affordable Fuel-Efficient (SAFE)

Vehicles Rule Part One: One National Program,

84 Fed. Reg. 51310 (Sept. 27, 2019) . . . . . . . . . . . . 5, 14

1

STATEMENT OF INTEREST OF AMICI CURIAE

Advancing American Freedom (AAF) is a nonprofit

organization that promotes and defends policies that

elevate traditional American values, including equal

treatment before the law. 1 AAF “will continue to serve as

a beacon for conservative ideas, a reminder to all branches

of government of their responsibilities to the nation,” 2 and

believes that the balance of powers between the States

and the federal government must be struck with due

respect for the coequal sovereignty of every State and

of the liberty interests each of the people those States

represent and serve.

Amici Richard Allen, JCCWatch.org; AMAC Action;

American Constitutional Rights Union; American Encore;

American Energy Institute; American Land Rights

Association; American Lands Council; Americans for

Limited Government; American Securities Association;

American Values; Saulius “Saul” Anzius, President, The

American Association of Senior Citizens; E. Calvin Beisner,

Ph.D., President, Cornwall Alliance for the Stewardship

of Creation; Shawnna Bolick, Arizona State Senator,

District 2; Center for Political Renewal; Daniel Darling;

Eagle Forum; JoAnn Fleming, Executive Director,

1. All parties received timely notice of the filing of this

brief. No counsel for a party authored this brief in whole or in

part. No person other than Amicus Curiae and its counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

2. Edwin J. Feulner, Jr., Conservatives Stalk the House:

The Story of the Republican Study Committee, 212 (Green Hill

Publishers, Inc. 1983).

2

Grassroots America-We the People PAC; Freedom

Foundation of Minnesota; Frontline Policy Council;

Representative Steven E. Galloway, District 24, Montana

House of Representatives; Charlie Gerow; Allen J. Hebert,

Chairman, American-Chinese Fellowship of Houston;

Idaho Freedom Foundation; International Conference

of Evangelical Chaplain Endorsers; Tim Jones, Fmr.

Speaker, Missouri House, Chairman, Missouri CenterRight Coalition; James L. Martin, Founder/Chairman, 60

Plus Association; Men and Women for a Representative

Democracy in America, Inc.; National Center for Public

Policy Research; Project Sentinel; Project 21 Black

Leadership Network; Rio Grande Foundation; Pamela

S. Roberts, Immediate Past President- Kentucky

Federation of Republican Women; Setting Things Right;

Stand for Georgia Values Action; Strategic Coalitions &

Initiatives, LLC; Tradition, Family, and Property, Inc.;

Truth in Energy and Climate; Women for Democracy in

America, Inc.; Young America’s Foundation; and Young

Conservatives of Texas believe that the Constitution and

the ideas that underly it are essential to the preservation

of the freedom of the people.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This case concerns an Environmental Protection

Agency (EPA) statutory interpretation that, if upheld,

would undermine the basic principle of the American

federal system that each State in the Union possesses

equal sovereignty to every other State. Under the Clean

Air Act (CAA), “any State” may get a waiver to the EPA’s

motor vehicle emissions regulations, allowing that State

to substitute its own standards. 42 U.S.C. § 7543 (b)(1).

3

In practice, this waiver is available only to deep-blue

California. See Exec. Order 14037, 42 U.S.C. § 7521, Sec.

6(c); H.R. Rep. No. 95-294, at 301–02 (1977); Am. Auto.

Mfrs. Ass’n v. Comm’r, Mass. Dept. of Env’t Prot., 998 F.

Supp. 10, 13 (D. Mass. 1997). Because “California is the

only state that had adopted emissions standards prior to

March 30, 1966, it is the only state eligible for a waiver

of federal preemption under th[e] provision.” Chamber of

Com. of U.S. v. EPA, 642 F.3d 192, 196 (D.C. Cir. 2011)

(citing Ford Motor Co. v. EPA, 606 F.2d 1293, 1296 (D.C.

Cir. 1979)). The waiver provision of the CAA was enacted

largely to enable California to address unique and local

problems like Los Angeles smog. H.R. Rep. No. 90-728,

at 22 (1967). The history of this waiver demonstrates that

this scheme undermines the primary virtues of national

regulation, uniformity and stability, while simultaneously

undermining the virtues of federalism.

The EPA’s waiver of preemption in this case is a

perversion of the federalist system adopted by the People

in the Constitution. The Constitution was designed to leave

most powers to the States, as demonstrated both by the

limited enumeration of federal powers and the express

statement of reserved powers in the Tenth Amendment.

The Framers knew that local control was preferable

wherever it was possible, 3 and that allowing each State

3. See The Federalist No. 10 at 47 (James Madison) (George

W. Carey and James McClellan, eds., The Liberty Fund 2001)

(explaining that under the Constitution, “the great and aggregate

interests” of the nation should be “referred to the national

[legislature], the local and particular to the state legislatures.”);

The Federalist No. 17 at 80-81 (Alexander Hamilton) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (“The

administration of private justice between the citizens of the same

4

to regulate most issues for itself would create what

Justice Brandeis would later describe as laboratories of

governance in which each State has the power to address

the issues it faces in unique ways. New State Ice Co. v.

Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting).

National regulation, on the other hand, may be desirable

or even necessary where fifty different approaches to a

particular issue would be untenable; a problem Congress

can address where the Constitution grants it the power

to do so. Assuming for the sake of argument that the

federal government’s current approach to the regulation

of vehicular carbon emissions is within the scope of its

constitutional power, the waiver at issue in this case

creates the worst of both worlds.

On the one hand, most states are unable to pursue

their own regulatory interests and agendas because

they are required to follow the EPA’s national standard.

On the other hand, regulated parties have no reliable

stability because the EPA has repeatedly granted and

then revoked California’s preemption waiver.4 In 2005,

California applied for a waiver to allow it to implement

its Low-Emission Vehicle Greenhouse Gas Program; in

State, the supervision of agriculture and of other concerns of a

similar nature, all those things in short which are proper to be

provided for by local legislation, can never be desirable cares of

a general jurisdiction.”)

4. Under Chevron, “courts” were “even . . . deferring

to agencies when they changed their views about a statute’s

meaning.” Neil Gorsuch, Janie Nitze, Over Ruled: The Human

Toll of Too Much Law 90 (2024). Today, the Court should be

skeptical of an agency’s claim that the statute it interprets clearly

means what the agency says it means where, as here, the agency’s

interpretation has repeatedly changed.

5

2008, the EPA denied this waiver application. 5 Then in

2009, the EPA reversed its prior decision and granted

the waiver.6 In 2012, California applied for the waiver at

issue here, and the EPA granted it early the next year.7

In 2019, the EPA revoked that waiver. 8 In 2022 the EPA,

again reversed itself, reinstating the 2012 waiver.9

Whatever the legitimacy of the statute in question

here, this case challenges the EPA’s interpretation of that

statute. When agencies claim significant new regulatory

5. California State Motor Vehicle Pollution Control

Standards; Notice of Decision Denying a Waiver of Clean Air

Act Preemption for California’s 2009 and Subsequent Model Year

Greenhouse Gas Emission Standards for New Motor Vehicles, 73

Fed. Reg. 12156, 12159–63 (Mar. 6, 2008).

6. California State Motor Vehicle Pollution Control

Standards; Notice of Decision Granting a Waiver of Clean Air

Act Preemption for California’s 2009 and Subsequent Model Year

Greenhouse Gas Emission Standards for New Motor Vehicles, 74

Fed. Reg. 32744, 32745–46 (July 8, 2009).

7. California State Motor Vehicle Pollution Control

Standards; Notice of Decision Granting a Waiver of Clean Air Act

Preemption for California’s Advanced Clean Car Program and

a Within the Scope Confirmation for California’s Zero Emission

Vehicle Amendments for 2017 and Earlier Model Years, 78 Fed.

Reg. 2112 (Jan. 9, 2013).

8. The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule

Part One: One National Program, 84 Fed. Reg. 51310 (Sept. 27,

2019).

9. California State Motor Vehicle Pollution Control

Standards; Advanced Clean Car Program; Reconsideration

of a Previous Withdrawal of a Waiver of Preemption; Notice of

Decision, 87 Fed. Reg. 14332, 14332-33 (Mar. 14, 2022).

6

power based on an existing statute, the major questions

doctrine calls for judicial skepticism. West Virginia v.

EPA, 597 U.S. 697, 724 (2022) (quoting Utility Air Grp. v.

EPA, 573 U.S 302, 324 (2014)). With Chevron U.S.A. Inc. v.

Natural Res. Def. Council, 467 U.S. 837 (1984) overturned

by this Court in Loper Bright Enters. v. Raimondo, No.

22-451 (June 28, 2024), when such interpretations are not

based on a clear congressional statement, they should be

struck down by the Courts as administrative overreach.

Because Congress never granted the EPA authority to

waive preemption for California as it did in this case,

the Court should grant certiorari and strike down that

exemption.

California’s ability to adopt an alternative standard

and the inevitable back and forth of the EPA’s granting

and rescinding of the exemption creates the regulatory

uncertainty that preemption of the States was supposed

to address. Either carbon emissions are a national issue

warranting federal standards or they are an issue that is

better left to the States in general, not just one hyperregulatory State.10 The federal government and California

should not be allowed to have it both ways. The current

preemption waiver harms regulated entities and related

business interests, the States that would adopt policies

more conducive to free enterprise, and the people who

would elect representatives to pursue those policies. The

Court should grant certiorari and rule for Petitioners, thus

10. California’s inclination towards regulation is so severe

that U-Haul at one point could not keep up with demand for trucks

for people to move out of the State. Dan McLaughlin, U-Haul

Literally Ran Out of Trucks Leaving California, National Review

(Jan. 14, 2022 11:23AM) https://www.nationalreview.com/corner/uhaul-literally-ran-out-of-trucks-leaving-california/.

7

preserving the equal sovereignty of every State against

federal favoritism.

ARGUMENT

I.

The EPA’s Granting of an Exemption to California

Under the CAA Implicates the Major Questions

Doctrine.

The major questions doctrine “ensures that the

national government’s power to make the laws that govern

us remains where Article I of the Constitution says it

belongs—with the people’s elected representatives.” Nat’l

Fed’n of Indep. Bus. v. Dep’t of Lab., OSHA, 595 U.S.

109, 124 (2022) (Gorsuch, J., concurring). The doctrine

is implicated 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.” West Virginia, 597 U.S.

at 721 (alteration in original) (quoting FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000)).

Where the doctrine is implicated, “[t]he agency instead

must point to ‘clear congressional authorization’ for the

power it claims.” Id. at 723 (quoting Utility Air Regulatory

Group v. EPA, 573 U.S. 302, 324 (2014)). As Justice

Gorsuch has explained, there are three circumstances in

which the doctrine is implicated and thus that require the

agency to show clear congressional direction.

First, the “doctrine applies when an agency claims the

power to resolve a matter of great ‘political significance.’”

Id. at 743 (citing NFIB v. OSHA, 595 U.S. at 117 (some

internal quotation marks omitted)). Second, it applies when

8

“an agency . . . seeks to regulate ‘a significant portion

of the American economy.’” Id. at 744 (some internal

quotation marks omitted) (citing West Virginia, 597 U.S.

at 722) (majority opinion)). And finally, the doctrine applies

when the agency “seeks to ‘intrud[e] into an area that is the

particular domain of State law.’” Id. at 744 (citing Alabama

Assn. of Realtors v. Dep’t of Health and Hum. Servs., 594

U.S. 758, 764 (2021)). The EPA’s waiver of preemption for

California in this case does all three.

The EPA’s waiver, in effect, “claims the power to

resolve a matter of great ‘political significance.’” Id. at 743

(Gorsuch, J., concurring) (citing NFIB v. OSHA, 595 U.S. at

117 (some internal quotation marks omitted)). The waiver

scheme at issue here reaches much further than California

by design. Seventeen States, as well as the District of

Columbia have adopted either California greenhouse-gas

emission standards or California’s zero-emission-vehicle

mandate.11 Further, the goal of California’s emissions

restrictions is to affect global climate change.12 Brief

for Petitioners at 30 (“No one disputes that the express

purpose of California’s standards was to regulate global

11. California Air Resources Board, States that Have

Adopted California’s Vehicle Regulations (June 2024), https://

w w 2.arb.ca.gov/our-work /programs/advanced-clean-carsprogram/states-have-adopted-californias-vehicle-regulations.

12. “The academic and author Edwin J. Feulner, Jr., once

argued that Hayek’s ‘greatest contribution lay in the discovery

of a simple yet profound truth: man does not and cannot know

everything, and when he acts as if he does, disaster follows.’”

Gorsuch, supra note 4 at 99. Icharus’s hubris led to his downfall.

That a State would take it upon itself to solve a global issue through

burdensome regulation demonstrates a need to return to that

story and imbibe its lesson once more.

9

climate change.”). Climate change and the best regulatory

approach with respect to that issue are among the most

contentious and debated issues in contemporary politics.

By granting California this waiver, the EPA allows it to

adopt policies designed to affect that issue globally, while

other States that might prefer a different approach are

left without any such authority. This favoritism allows one

privileged, left of center State to set policy that will have a

significant, nationwide impact on a politically contentious

issue.

Second, the major questions doctrine is implicated

when “an agency . . . seeks to regulate ‘a significant

portion of the American economy.’” West Virginia, 597

U.S. at 744 (Gorsuch, J., concurring) (some internal

quotation marks omitted) (citing West Virginia, 597 U.S.

at 722) (majority opinion)). The States that have adopted

at least some of California’s standards in place of the

EPA’s, are together regulating markets that account for

at least 40.2% of new “light-duty” vehicle registrations

and 25.5% of new “heavy-duty” vehicle registrations in

the United States.13 Considering the national market for

new light and heavy duty vehicle sales is a multi-billion

dollar per year industry, the waivers at issue in this case

allow for regulation of a sufficiently significant portion of

the American economy to implicate the major questions

doctrine. The property rights involved, including the

right to engage freely in the market, are among those

fundamental rights the Constitution was designed to

13. CARB, States that Have Adopted California’s Vehicle

Regulations (June 2024), https://w w2.arb.ca.gov/our-work/

programs/advanced-clean-cars-program/states-have-adoptedcalifornias-vehicle-regulations.

10

ensure, and those rights are heavily impacted by the

regulations here at issue.

Finally, agency action may implicate the major

questions doctrine when it “seeks to ‘intrud[e] into an area

that is the particular domain of state law.’” West Virginia,

597 U.S. at 744 (Gorsuch, J., concurring) (citing Alabama

Assn. of Realtors v. Dep’t of Health and Hum. Servs., 594

U.S. 758, 764 (2021)). Assuming the federal government’s

regulation of vehicular emissions is a legitimate exercise

of its Commerce Clause power, the preemptive exercise

of that power depends on the assumption that a national

standard is necessary to avoid the patchwork of policies

federalism creates. If so, and if States cannot be allowed

to each adopt their own policies on this issue because of

the need for uniformity, then it is an offense against all

forty-nine other equally sovereign States to grant special

regulatory privileges to one. The EPA and California

cannot have it both ways. This is not to say that States

and localities could not be granted exemptions to adopt

policies narrowly tailored to address unique local issues.

But exemptions of that nature, which Congress intended

to create here, are significantly different from policies

that are designed to address global issues, and which will

have a massive, nationwide economic and political impact.

“Other suggestive factors” that an agency interpretation

implicates the major questions doctrine, are that the

policy would cause an “aggressive transformation” of

a significant economic sector or would “unquestionably

ha[ve] an impact on federalism.” West Virginia, 597 U.S. at

745-46 (Gorsuch, J., concurring). As the discussion above

makes clear, California’s unique preemption exemption

does exactly that in this case. By allowing California

11

and no other State to promulgate new motor vehicle

emissions regulations, the EPA has given California the

exclusive privilege not only to more fully exercise its own

sovereignty, but also to be the only State that can propose

emission rules that can have interstate reach and effect.

42 U.S.C. § 7543 (b), (c); Chamber of Com. of U.S. v. EPA,

642 F.3d 192, 196 (D.C. Cir. 2011). Similarly, because

equal State sovereignty is a cornerstone of the American

federal system, see Shelby Cnty. v. Holder, 570 U.S. 529,

535 (2013) (ruling based on “the principle that all States

enjoy equal sovereignty.”), this California-only waiver

scheme “unquestionably has an impact on federalism”

by placing California in a special position to propose

legislation adoptable across the nation, in a way that is

unavailable to other States. Shelby Cnty., Ala. v. Holder,

570 U.S. 529, 544 (2013); West Virginia, 597 U.S. at 746

(Gorsuch, J., concurring); 42 U.S.C. § 7543 (b)(3).

Because the preemption waiver here implicates

political and economic issues of great importance and

effect, intrudes on the domain of State law, aims to

aggressively transform the automotive industry, and

undermines the States’ co-equal sovereignty, the EPA

must show a clear congressional statement from Congress

allowing it to privilege a highly regulatory State with a

power available to no other State.

II. The EPA’s Granting of a Preemption Waiver to

California in this Case is Not Based on a Clear

Statement of Authority from Congress.

Because the EPA’s preemption waiver for California

implicates the major questions doctrine, the agency must

show that that waiver is based on a “clear congressional

12

statement authorizing [its] action.” See West Virginia, 597

U.S. at 746 (Gorsuch, J., concurring). Factors that help

the Court determine whether there is clear congressional

authorization include the statutory context of the provision,

“the age and focus of the statute,” and the agency’s past

interpretations of the statute. Id. at 746-47.

“First, courts must look to the legislative provisions

on which the agency seeks to rely ‘with a view to their

place in the overall statutory scheme.’” Id. (Gorsuch, J.,

concurring) (some internal quotation marks omitted)

(quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 133 (2000)). The EPA relies on the waiver

provision of the Clean Air Act (CAA). Ohio v. EPA, No.

22-1081, slip op. at 9 (D.C. Cir. April 9, 2024). The CAA

enables the Administrator of the EPA to promulgate rules

governing the emissions standards for new vehicles. 42

U.S.C. § 7521(a)(1). To gain a waiver from these rules,

California must determine that its proposed regulations

are “in the aggregate, at least as protective of public

health and welfare as applicable Federal standards.” 42

U.S.C. § 7543(b)(1). The EPA must then deny California’s

waiver application if: “(A) the determination of the State is

arbitrary and capricious, (B) such State does not need such

State standards to meet compelling and extraordinary

conditions, or (C) such State standards and accompanying

enforcement procedures are not consistent with section

7521(a).” 42 U.S.C. § 7543(b)(1)(A)-(C). These limitations

to the EPA’s waiver authority reflect the reasons that

Congress allowed this narrow exception—to allow States

to adopt alternative regulations tailored to address local

environmental needs, particularly the unique geography

of the Los Angeles basin that creates a smog problem

unlike any other area in the country. H.R. Rep. No. 90728, at 22 (1967).

13

The Energy Policy and Conservation Act (EPCA)

also has relevant provisions that adjusted the function

of the CAA’s vehicle emissions statutory scheme. The

EPCA commands “the Secretary of Transportation [to]

prescribe by regulation average fuel economy standards

for automobiles.” 49 U.S.C. § 32902(a). The EPCA further

explicitly preempts State laws “relat[ing] to fuel economy

standards.” 49 USCA § 32919(a). At the very least, by its

plain language—the preemption provision of the EPCA,

enacted four years after the waiver provision of the CAA,

put a limitation on the EPA’s power to grant waivers under

the CAA by precluding any State regulations on average

fuel economy standards. 42 U.S.C. § 7543; 49 U.S.C.

§ 32919. Because the California regulations at issue here

relate to average fuel economy standards, the EPA was

obligated to deny California’s waiver. Cal. Code Regs.

Tit. 13, § 1961.2(a); Cal. Code Regs. Tit. 13 § 1961.3(a)(2)

(B)-(C).

“Second, courts may examine the age and focus of

the statute the agency invokes in relation to the problem

the agency seeks to address.” West Virginia, 597 U.S.

at 747 (Gorsuch, J., concurring). The waiver provision

of the CAA was enacted to enable California to address

local pollution problems like smog in Los Angeles. H.R.

Rep. No. 90-728, at 22 (1967). As Petitioners explain,

the California regulations at issue here seek to curb

global climate change, not alleviate any “compelling or

extraordinary” local issues. See Brief for Petitioners at 2829. But see 78 Fed. Reg. 2,112, 2,130. Neither the cause of

global climate change nor its effects are local to California,

and the State’s regulations would not have a meaningful

impact on global climate change. Brief for Petitioners at

29-31. This complete misalignment between the purpose

14

of the preemption waiver and its use by the State here

demonstrates that the EPA’s grant of the waiver was not

based on a clear statement from Congress.

“Third, courts may examine the agency’s past

interpretations of the relevant statute.” West Virginia,

597 U.S. at 746 (Gorsuch, J., concurring) (citing West

Virginia, 597 U.S. at 710-11). In this case, the agency’s

interpretation has oscillated repeatedly, suggesting that

the agency itself cannot even decide what the statute

clearly means. As has already been noted, after denying

a California waiver application in 2008, the EPA reversed

itself a year later.14 Again in 2013, the EPA granted the

waiver,15 and again in 2019 it revoked the waiver.16 Then in

14. California State Motor Vehicle Pollution Control

Standards; Notice of Decision Denying a Waiver of Clean Air

Act Preemption for California’s 2009 and Subsequent Model Year

Greenhouse Gas Emission Standards for New Motor Vehicles, 73

Fed. Reg. 12156, 12159–63 (Mar. 6, 2008). California State Motor

Vehicle Pollution Control Standards; Notice of Decision Granting

a Waiver of Clean Air Act Preemption for California’s 2009 and

Subsequent Model Year Greenhouse Gas Emission Standards for

New Motor Vehicles, 74 Fed. Reg. 32744, 32745–46 (July 8, 2009).

15. California State Motor Vehicle Pollution Control

Standards; Notice of Decision Granting a Waiver of Clean Air Act

Preemption for California’s Advanced Clean Car Program and

a Within the Scope Confirmation for California’s Zero Emission

Vehicle Amendments for 2017 and Earlier Model Years, 78 Fed.

Reg. 2112 (Jan. 9, 2013).

16. The Safer Affordable Fuel-Efficient (SAFE) Vehicles

Rule Part One: One National Program, 84 Fed. Reg. 51310, (Sept.

27, 2019).

15

2022, the EPA reinstated the previous waiver.17 If the EPA

insists the statute is clear, it must provide a justification

for its own apparent inability to construe it consistently.

Given that the EPA’s current interpretation would

create a two-tiered federalism where one State is given

preeminent authority compared to the others, and because

such an arrangement violates the principle of equal State

sovereignty, the Court should find that there is no clear

congressional authorization to do so.

The EPA’s waiver of preemption for California in

this case is not based on a clear statement of authority

from Congress. Instead, it violates both the express

purpose of the waiver system and the basic constitutional

principles of federalism and coequal State sovereignty.

The Court should grant certiorari, find that Petitioners

have standing, and rule for Petitioners on the merits.

17. California State Motor Vehicle Pollution Control

Standards; Advanced Clean Car Program; Reconsideration

of a Previous Withdrawal of a Waiver of Preemption; Notice of

Decision, 87 Fed. Reg. 14332, 14332-33 (Mar. 14, 2022).

16

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

J. Marc Wheat

Counsel of Record

Timothy Harper (A dmitted in DC)

A dvancing A merican Freedom, Inc.

801 Pennsylvania Avenue, N.W.

Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@

advancingamericanfreedom.com

Counsel for Amici Curiae