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

Supreme Court briefAug 7, 2024

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No. 24-7

IN THE

Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

Petitioners,

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 THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA,

AMERICAN AUTOMOTIVE LEASING

ASSOCIATION, AMERICAN CAR RENTAL

ASSOCIATION, ASSOCIATED GENERAL

CONTRACTORS OF AMERICA, INC., AND

TRUCK RENTING AND LEASING

ASSOCIATION AS AMICI CURIAE

SUPPORTING PETITIONERS

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

JAIME A. SANTOS

Counsel of Record

WILLIAM M. JAY

BENJAMIN HAYES

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

(202) 346-4000

jsantos@goodwinlaw.com

(Additional counsel on signature page)

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ...................... 1

SUMMARY OF ARGUMENT .................................... 4

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

The D.C. Circuit’s decision imposes

artificial barriers to judicial review of

agency action. ....................................................... 7

A. Businesses should be able to obtain

judicial review of agency action that

predictably harms them. ............................... 8

B. Common sense and basic economics

confirm that an order vacating EPA’s

waiver will redress petitioners’

injuries. ........................................................ 10

II. The D.C. Circuit’s cramped view of

redressability erodes effective judicial

review of agency action and warrants this

Court’s reversal now. ......................................... 14

CONCLUSION ......................................................... 24

TABLE OF AUTHORITIES

Page(s)

Cases:

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ..................................... 15, 17

Bennett v. Spear,

520 U.S. 154 (1997) ....................................... 9, 17

Bowen v. Massachusetts,

487 U.S. 879 (1988) ........................................... 15

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 16

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

Fed. Rsrv. Sys.,

144 S. Ct. 2440 (2024) ................. 6, 15, 17, 19, 20

Dep’t of Commerce v. New York,

588 U.S. 752 (2019) ......................... 4, 5, 8, 12, 13

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ..................................... 10, 18

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) ........................................... 15

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

Servs. (TOC), Inc.,

528 U.S. 167 (2000) ........................................... 13

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ........................................... 17

iii

Kisor v. Wilkie,

588 U.S. 558 (2019) ........................................... 16

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ....................................... 4, 18

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ...................... 15, 16

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................... 12

Ohio v. EPA,

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

Ohio v. EPA,

No. 2:15-cv-2467, 2022 WL 866273 (S.D.

Ohio Mar. 23, 2022) .......................................... 20

Reno v. Cath. Soc. Servs., Inc.,

509 U.S. 43 (1993) ............................................. 17

Richards v. Jefferson Cnty.,

517 U.S. 793 (1996) ........................................... 17

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ..................................... 15, 16

Simon v. E. Ky. Welfare Rts. Org.,

426 U.S. 26 (1976) ............................................. 16

Thole v. U.S. Bank N.A.,

590 U.S. 538 (2020) ........................................... 14

Statutes:

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

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

42 U.S.C. § 7543(b)(1)(B) ....................................... 22

42 U.S.C. § 7607(b) ........................................... 20, 21

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980

§ 113(a), 42 U.S.C. § 9613(a) ............................ 21

Safe Drinking Water Act § 1448(a)(1),

42 U.S.C. § 300j-7(a)(1) ..................................... 21

Solid Waste Disposal Act § 7006(a)(1),

42 U.S.C. § 6976(a)(1) ....................................... 21

Regulations:

78 Fed. Reg. 2,112 (Jan. 9, 2013) ........................... 11

87 Fed. Reg. 14,332 (Mar. 14, 2022) ................ 11, 12

Other Authorities:

Susan Low Bloch & Ruth Bader Ginsburg,

Celebrating the 200th Anniversary of the

Federal Courts of the District of

Columbia, 90 Geo. L.J. 549 (2002) ................... 21

Cal. Air Res. Bd., Low-Emission Vehicle

(LEV III) Program,

https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-carsprogram/lev-program/low-emissionvehicle-lev-iii-program ...................................... 11

Cal. Air Res. Bd., Zero-Emission Vehicle

Program, https://ww2.arb.ca.gov/ourwork/programs/zero-emission-vehicleprogram/about ................................................... 11

National Archives, Federal Register & CFR

Statistics,

https://www.federalregister.gov/readeraids/federal-register-statistics .......................... 16

Oral Argument Transcript,

United States v. Texas,

No. 22-58, 2022 WL 18033772 (U.S. Nov.

29, 2022) .............................................................. 8

Antonin Scalia, Vermont Yankee: The APA,

the D.C. Circuit, and the Supreme Court,

1978 Sup. Ct. Rev. 345 (1978) .......................... 21

U.S. Courts, U.S. Courts of Appeals - Cases

Commenced, Terminated, and Pending,

by Circuit and Nature of Proceeding,

During the 12-Month Period Ending

March 31, 2024, tbl. B-1,

https://www.uscourts.gov/statisticsreports/caseload-statistics-data-tables

(accessed, July 18, 2024) ................................... 21

Patricia M. Wald, The Contribution of the

D.C. Circuit to Administrative Law, in

40 Admin. L. Rev. 507 (1988) ........................... 21

INTEREST OF THE AMICI CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. The

Chamber directly represents approximately 300,000

members and indirectly represents the interests of

more than 3 million companies and professional organizations of every size, in every industry sector, and

from every region of the country. An important function of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases, like this

one, that raise issues of concern to the Nation’s business community.

The American Automotive Leasing Association

(“AALA”) is a national trade organization that represents commercial automotive fleet leasing companies.

AALA members own and manage more than 3.5 million vehicles, which are leased to small businesses,

nonprofit organizations, government entities, and corporations that usually have smaller divisions or franchises in all 50 states. These vehicles range from passenger cars to cargo vans and trucks that are customized and outfitted to fit business purposes, from electrical and plumbing repair and telecommunications installation to wholesale food and beverage distribution

and fuel delivery. Fleet leasing companies make businesses of all sizes more competitive by allowing cus-

1 No counsel for any party authored this brief in whole or in part

and no entity or person, aside from amici curiae, their members,

or their counsel, made any monetary contribution intended to

fund the preparation or submission of this brief. All parties

received timely notice of amici’s intent to file this brief.

tomers to focus on their core business activities rather

than managing their vehicle fleets.

The American Car Rental Association (“ACRA”) is

the national representative for over 98% of our nation’s

car rental industry. ACRA’s membership consists of

more than 300 car rental companies, including nationwide rental car companies, along with many system

licensees and franchisees and mid-size, regional and

independent car rental companies. ACRA members

have over 2.1 million registered vehicles in service in

the United States, with fleets ranging in size from ten

cars to one million cars, and employ more than 160,000

workers at rental locations in nearly every county and

in every State across the nation.

The Associated General Contractors of America, Inc.

(“AGC of America”) is the nation’s largest and most diverse trade association in the commercial construction

industry, now representing more than 28,000 member

companies, that include general contractors, specialty

contractors, and service providers and suppliers to the

industry through a nationwide network of chapters in

all 50 states, the District of Columbia, and Puerto Rico. AGC of America represents both union- and openshop employers engaged in building, heavy, civil, industrial, utility, and other construction for both public

and private property owners and developers. AGC of

America works to ensure the continued success of the

commercial construction industry by advocating for

federal, state, and local measures that support the industry; providing education and training for member

firms; and connecting member firms with resources

needed to be successful businesses and responsible

corporate citizens. The association also strives to

maintain its members’ longstanding commitment to

skill, integrity and responsibility.

The Truck Renting and Leasing Association

(“TRALA”) is a voluntary non-profit trade association

founded in 1978 to serve as the unified and focused

voice for the truck renting and leasing industry.

TRALA’s mission is to foster a positive legal and regulatory climate within which companies engaged in leasing and renting vehicles and trailers, as well as related

businesses, can compete without discrimination in the

North American marketplace. TRALA’s nearly 500

members engage primarily in commercial truck renting

and leasing, vehicle finance leasing, and consumer

truck rental. Its members also include companies with

motor-carrier operations and more than one hundred

supplier member companies that offer equipment,

products, and services to TRALA renting and leasing

company members. TRALA members purchase approximately 30% of all over-the-road Class 2-8 trucks

and tractors in the United States annually, and today

approximately one in every four trucks on the road, regardless of size, is a rented or leased vehicle.

Amici’s members are frequently injured by agency

action that does not directly regulate them but that

has a significant impact, often by design, on their operations and revenues. In those situations, amici and

their members often seek redress for such injuries in

federal court, including the D.C. Circuit. Amici therefore have an interest in ensuring that artificial barriers

to obtaining judicial review of agency actions that

cause their members harm are not erected under the

guise of Article III standing doctrine.2

SUMMARY OF ARGUMENT

The decision below distorts Article III’s redressability requirement beyond recognition—ignoring commonsense inferences based on predictable economic consequences. Review and reversal by this Court is urgently

needed to avoid foreclosing judicial review for a significant portion of everyday legal challenges to agency

overreach.

The Constitution requires parties suing in federal

court to establish the “irreducible constitutional minimum of standing.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992). Under this doctrine, parties that are

indirectly injured by agency action may bring suit in

federal court to secure redress of their injuries. Indeed, agencies frequently issue rules that have damaging effects on parties who are not the target or immediate subject of those regulations, and those parties often may be well positioned to assert legal challenges

that help to ensure that agencies do not stray beyond

their statutory authority. In such cases, courts assess

standing by drawing common-sense inferences about

the “predictable effect” of agency action on private conduct. Dep’t of Commerce v. New York, 588 U.S. 752,

768 (2019). If agency action directly coerces regulated

2 This brief takes no position on the second question presented in

the petition for certiorari. Relatedly, amici note that affected

businesses do not have a unified view of the questions presented.

For example, various vehicle manufacturers and other business

entities intervened in support of respondents in this case, opposing various arguments that petitioners made in attacking the regulatory decision at issue here. Ohio v. EPA, 98 F.4th 288, 299 &

n.6 (D.C. Cir. 2024).

entities in a way that injures other parties, common

sense dictates that an order vacating that agency action will redress those parties’ injuries—to at least

some degree.

Those straightforward principles require reversal

here. EPA issued a preemption waiver for California’s

low-emission and zero-emission vehicle regulations,

which had the goal of cutting emissions through a reduction in the consumption of the fuels that petitioners

(or their members) produce and distribute. See pp. 1011, infra. Manufacturers were thereby required to

comply with California’s mandates by adjusting their

production and pricing of low-emission or zero-emission

automobiles. Basic principles of supply and demand

dictate that if EPA’s waiver is vacated—and vehicle

manufacturers are free to make and price their vehicles according to market forces—those manufacturers

will produce or sell fewer low-emission or zero-emission

vehicles. Demand for the fuels petitioners (or their

members) produce and distribute will thus increase. If

that were not the natural economic consequence of vacating the agency’s decision, then there would have

been no reason for the agency to issue its preemption

waiver to begin with. It is therefore “likely” that vacating EPA’s waiver will redress at least some of petitioners’ (or their members’) injuries. Dep’t of Commerce,

588 U.S. at 766 (citation omitted). That is all redressability requires.

The D.C. Circuit refused to credit those commonsense inferences. It instead adopted a constrained

view of redressability that effectively required petitioners to obtain affidavits from vehicle manufacturers

attesting that, if EPA’s waiver were vacated, they

would alter their vehicle production or pricing in a way

that would increase demand for petitioners’ fuel products. That requirement imposes a substantial—often

insurmountable—barrier to unregulated (or indirectly

regulated) entities’ ability to obtain judicial review of

agency action that has injured them.

This Court’s intervention is needed now to ensure

that judicial review continues to serve its indispensable role as a check on unlawful agency action. By requiring the petitioners in this case to secure the cooperation of directly regulated third parties in order to

mount a legal challenge, the D.C. Circuit’s decision distorts standing doctrine, insulates overreaching agency

decisions, and creates superficial barriers to judicial

review. It also rewards the bait-and-switch tactics employed by California, which insisted that EPA’s waiver

was necessary to lower emissions by reducing fossil-fuel

consumption in California, but now seeks to evade review by claiming that vacating the waiver will have no

impact on fossil-fuel consumption at all.

Unless corrected, the D.C. Circuit’s rule threatens to

preclude a substantial number of injured parties from

obtaining judicial redress of their injuries. Directly

regulated parties may have numerous valid reasons

not to assist with a legal challenge to an action brought

against their regulator. To require their participation

as a precondition for federal courts to adjudicate actions by unregulated—but concretely harmed—entities

will foreclose such challenges in a significant swath of

cases. And the effects of the lower court’s draconian

rule will be widespread, as there are “entire classes of

administrative litigation that have traditionally been

brought by unregulated parties”—and frequently in the

D.C. Circuit. Corner Post, Inc. v. Bd. of Governors of

the Fed. Rsrv. Sys., 144 S. Ct. 2440, 2464 (2024) (Ka-

vanaugh, J. concurring). The Court should grant certiorari now to ensure the continued availability of a judicial forum to evaluate the lawfulness of agency action.

ARGUMENT

The D.C. Circuit’s decision imposes

artificial barriers to judicial review of

agency action.

The decision below effects a dramatic distortion of

Article III jurisprudence that will close the door to a

significant portion of challenges to agency action in the

court that is most frequently tasked with reviewing

agency decisions (and reining in agency overreach)—

unless this Court promptly intervenes. The D.C. Circuit held that to show Article III redressability, petitioners had to prove what actions regulated third-party

automobile manufacturers would take if EPA’s waiver

were vacated. The lower court’s decision ignores both

common sense and basic principles of supply and demand. When an agency writes a rule that depresses

demand for a product, common sense dictates that vacating that rule will cause demand to rebound. That is

precisely the case here: EPA and California envisioned and understood that EPA’s waiver would cause

economic injury to petitioners by promoting lowemission or zero-emission vehicles that use less of the

fuels that petitioners (or their members) sell and distribute. Vacating EPA’s waiver will likely redress that

injury, at least in part—which is all Article III requires.

The decision below disregards that common-sense

inference and, in so doing, erects a substantial barrier

to judicial review of a wide array of agency actions.

And the fact that this position has been adopted by the

D.C. Circuit makes the need for this Court’s intervention now all the more acute. Congress has centralized

judicial review of so many agency actions in that court

that it encounters APA actions like this one “five times

before breakfast.” Oral Argument Transcript, United

States v. Texas, No. 22-58, 2022 WL 18033772, at *35

(U.S. Nov. 29, 2022) (Roberts, C.J.). This Court should

grant review.

Businesses should be able to obtain

judicial review of agency action that

predictably harms them.

Article III requires petitioners to show that their injuries are “likely” to be “redressed by a favorable ruling” from a federal court. Dep’t of Commerce, 588 U.S.

at 766 (citation omitted). This standard can be met by

drawing common-sense inferences from the natural,

predictable effects of government action or its removal.

Such common-sense inferences appropriately ensure

that judicial review is limited to actual cases or controversies, but without closing the courthouse doors to

those injured by agency action.

This Court illustrated this understanding of redressability in Department of Commerce. There, the

Court held that States had standing to challenge the

reinstatement of a citizenship question on the census

questionnaire. 588 U.S. at 766-768. Reinstating the

question would deter some noncitizens from responding

to the census, and in turn cause States “a number of

injuries,” including the loss of federal funds “distributed on the basis of state population.” Id. at 766-767.

The Court rejected the argument that this injury was

too “speculat[ive]” because it “depend[ed] on the independent action of third parties choosing to violate their

legal duty to respond to the census.” Id. at 767-768.

The States’ “theory of standing” appropriately “relie[d] … on the predictable effect of Government action

on the decisions of third parties”—if the citizenship

question is asked, fewer noncitizens will respond. Id.

at 768 (emphasis added). And because that injury was

“sufficiently concrete and imminent,” there was “no

dispute that a ruling in favor of [the States] would redress that harm,” id. at 767—i.e., more noncitizens

would respond to the census and the States would receive more federal funds.

The “effect” of vacating an agency action is even

more “predictable” when the injury is the intended or

obviously foreseen consequence of that action—not just

collateral damage. Suppose, for example, that in an

effort to curb consumption of high-sugar beverages,

California banned retailers from selling soft drinks in

cups bigger than 20 ounces, despite significant customer demand for Big Gulps. The effect would be obvious:

soft-drink producers would sell less soda syrup in California. If the ban were promptly overturned, then at

least some retailers would naturally be expected to

again offer larger-sized sodas—given customer demand—which would repair at least some of the softdrink producers’ injuries. Accord Bennett v. Spear, 520

U.S. 154, 168-171 (1997) (finding injury-in-fact and redressability when the unregulated plaintiff’s injury followed from the “coercive effect” of government action

“upon the action of someone else”).

Whether soft-drink producers or fuel suppliers, unregulated entities that are economically injured by

agency action should be able to challenge it—

particularly if the decreased consumer demand that

harmed them was the explicit goal or clearly foreseeable outcome of the government regulation. That eco-

nomic injury is the sine qua non of standing. It would

make no sense to forbid these injured parties from

coming into court unless they could convince their customers—U.S. retailers—to submit declarations attesting to the business decisions those customers would

make if the government action were vacated. Nor has

this Court ever required such an unreasonably high

evidentiary showing to establish redressability.

In cases like these, redressability is not rocket science; it is basic economics. Once economic injury

caused by regulation is established, redressability is a

light lift, given that it is the mirror image of the injury

that the unregulated entity experienced. See FDA v.

All. for Hippocratic Med., 602 U.S. 367, 380-381 (2024)

(explaining that “[i]f a defendant’s action causes an injury, enjoining the action … will typically redress that

injury,” and “[s]o the two key questions in most standing disputes are injury in fact and causation”). That is

why the split at issue here is so lopsided—most courts

of appeals have had no trouble applying that principle

to find that an unregulated party had Article III standing. See Pet. 22-24.

Common sense and basic economics

confirm that an order vacating EPA’s

waiver will redress petitioners’

injuries.

This case is an ideal vehicle for the Court to resolve

the circuit split because common sense confirms that

an order vacating EPA’s waiver will redress petitioners’ injuries. California’s Low Emission Vehicle

(“LEV”) and Zero Emission Vehicle (“ZEV”) programs

require manufacturers of certain vehicles to meet

“stringent emission standards” for vehicles up through

model year 2025, see Cal. Air Res. Bd., Low-Emission

Vehicle (LEV III) Program,3 and dictate that a minimum percentage of total vehicles sold into California

by certain manufacturers must be zero-emission, see

Cal. Air Res. Bd., Zero-Emission Vehicle Program4; see

also 78 Fed. Reg. 2,112, 2,114, 2,119 (Jan. 9, 2013). A

reduction in demand for the fuels made or distributed

by petitioners was not an unforeseen byproduct of California’s programs. California confirmed as much when

it requested that EPA grant the permission necessary

for it to adopt these requirements—representing that

“net upstream emissions [would be] reduced through

the increased use of electricity and concomitant reductions in fuel production.” 87 Fed. Reg. 14,332, 14,364

(Mar. 14, 2022) (emphasis added) (quoting 2012 Waiver

Request, EPA-HQ-OAR-2012-0562-0004, at 15-16).

Predictably, automakers responded to California’s

mandates by altering their production plans and vehicle pricing to conform to California’s quotas. Pet. App.

12a.

Basic economics and common sense dictate that a

court order vacating EPA’s waiver would redress the

injury that the waiver foreseeably inflicted. Without

EPA’s waiver, the government compulsion that forced

automakers to alter their production and pricing to adhere to California’s requirements disappears. And

without that market-altering compulsion, it is “likely”

that at least some automakers would move back toward the market-driven production and pricing they

set before California’s artificial targets took effect.

Dep’t of Commerce, 588 U.S. at 766. Demand for the

3 https://ww2.arb.ca.gov/our-work/programs/advanced-clean-

cars-program/lev-program/low-emission-vehicle-lev-iii-program.

4 https://ww2.arb.ca.gov/our-work/programs/zero-emission-

vehicle-program/about.

fuels petitioners produce and distribute would therefore increase as consumers purchase more conventional

vehicles than they would have if EPA’s waiver remained in place.

To be sure, it may not be certain that all automakers

would reduce production of low-emission or zeroemission vehicles or raise those vehicles’ prices if

EPA’s waiver were vacated. But redressability does

not require a certain return to the status quo ante; it

simply requires that it be “likely” that vacatur would

restore some of the demand for petitioners’ fuels that

was suppressed due to EPA’s waiver. Dep’t of Commerce, 588 U.S. at 766; see also Massachusetts v. EPA,

549 U.S. 497, 526 (2007) (finding redressability when

injury “would be reduced to some extent if petitioners

received the relief they seek” (emphasis added)). Both

common sense and basic market forces compel that

conclusion here.

The case for redressability is thus even stronger here

than it was in Department of Commerce. There, the

States established standing—both injury and redressability—without having to prove that the agency added

a citizenship question to the census with the goal of

suppressing census responses, or that fewer census responses was the necessary consequence of adding a citizenship question. See 588 U.S. at 766-768. Where, as

here, a “reduction[] in fuel production” is the necessary

(and, indeed, intended) consequence of California’s

mandates, 87 Fed. Reg. at 14,364, standing should be

even easier to establish. The natural and logical consequence of an order blocking California’s mandates

(by vacating EPA’s waiver) is the reversal of that reduction.

The court of appeals, however, eschewed common-

sense inferences in favor of a rigid and heightened evidentiary standard. It held that petitioners had not

shown redressability because they did not produce evidence proving what vehicle manufacturers would do in

the event EPA’s waiver is vacated. In essence, the

court held that petitioners should have solicited affidavits from these automakers attesting to their future

business plans if EPA’s waiver is vacated. Pet. App.

24a-25a; see Pet. 20. Yet the D.C. Circuit identified no

decision of this Court imposing such a heightened evidentiary burden—and there is none. See Pet. 15-21.

At the same time, the court noted EPA’s statement

that some, but not all, vehicle manufacturers had voluntarily agreed to comply with California’s requirements after EPA’s 2013 waiver was rescinded, see Pet.

App. 13a-14a, and it conceded the “possib[ility] that

manufacturers could change their prices without modifying their production cycles,” which “may redress Petitioners’ injuries.” Pet. App. 24a (emphasis added). But

the court of appeals ignored the common-sense inferences that follow from these facts.

Instead, the D.C. Circuit premised its standing decision in part on its belief that automobile manufacturers would not have sufficient time to alter their vehicle

specifications even if EPA’s waiver were vacated, because the waiver only applies up through Model Year

2025 vehicles. See Pet. App. 22a-23a. But standing is

determined at the time suit is filed, Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 191 (2000), not at the time of a court’s decision years later. And here, petitioners filed their petition for review 60 days after EPA’s reinstatement of its

waiver in March 2022, Pet. 21—at which point EPA’s

waiver would be in effect for several years more. If the

limited time now remaining on EPA’s waiver—two

years after suit was filed—has jurisdictional implications, EPA could seek dismissal of the action by showing that the case is moot, but it has not done so. EPA

cannot leverage such post-filing events to contest

standing. And there are strong arguments that this

case is not moot and would not be mooted by the expiration of EPA’s waiver. See Pet. 26.

“Courts sometimes make standing law more complicated than it needs to be.” Thole v. U.S. Bank N.A.,

590 U.S. 538, 547 (2020). That is precisely what the

D.C. Circuit’s decision did here. By ignoring commonsense inferences derived from basic principles of supply

and demand, the court departed from this Court’s

precedents and split from the approach of its sister circuits. EPA granted California a waiver with the

acknowledged consequence of reducing demand for the

fuels petitioners make and distribute—causing petitioners injury. A court order vacating that agency action is likely to redress at least some of that injury going forward. That is more than sufficient for redressability.

II.

The D.C. Circuit’s cramped view of

redressability erodes effective judicial

review of agency action and warrants this

Court’s reversal now.

The D.C. Circuit’s decision not only misapplies the

law, it also undermines the fundamental value of judicial review of agency action. Unless this Court intervenes now, the D.C. Circuit’s rationale threatens to insulate broad swaths of agency action from judicial

scrutiny and, indeed, will incentivize the manipulation

of federal courts’ jurisdiction.

A. Judicial review of agency action is vitally important. Well over two centuries ago, this Court proclaimed that “[t]he very essence of civil liberty … consists in the right of every individual to claim the protection of the laws.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803). Congress later enshrined

that principle in the APA’s judicial review provision,

which establishes a “‘basic presumption’ that anyone

injured by agency action should have access to judicial

review.” Corner Post, Inc., 144 S. Ct. at 2459 (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)).

This review serves both a corrective and prophylactic

purpose: It enables courts to overturn unlawful agency

action (and redress injuries those actions caused), and

it serves as a deterrent against errant agency action—

encouraging agencies to stay within their statutory authority, follow proper procedures, carefully review the

facts, and employ sound judgment in promulgating and

enforcing their many rules and regulations. See, e.g.,

Bowen v. Massachusetts, 487 U.S. 879, 908 n.46 (1988)

(judicial review constrains the exercise of discretionary

power by administrative agencies and promotes fidelity

to statutory requirements).

The need for meaningful judicial review of agency

action is especially acute in light of the extraordinary

growth in the size and power of the administrative

state. The national government now houses a “vast

and varied federal bureaucracy” that “wields vast power … touch[ing] almost every aspect of daily life,” Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.

477, 499 (2010), and has “expan[ded] … into new territories the Framers could scarcely have imagined,”

Seila Law LLC v. CFPB, 591 U.S. 197, 231 (2020).

Much of the federal government’s operation now

consists of “hundreds of federal agencies poking into

every nook and cranny of daily life.” City of Arlington

v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting). To accomplish this, agencies “produce[]

reams of regulations—so many that they dwarf the

statutes enacted by Congress.” Kisor v. Wilkie, 588

U.S. 558, 629 (2019) (Gorsuch, J., concurring in the

judgment) (quotations marks omitted). And they “add

thousands more pages of regulations every year.” Id.;

see National Archives, Federal Register & CFR Statistics (showing that the CFR was less than 10,000 pages

in 1950, and now tops 188,000).5 This enormous expansion of the administrative state poses “a significant

threat to individual liberty.” Seila Law LLC, 591 U.S.

at 240 (Thomas, J., concurring in part and dissenting

in part) (citation omitted).

Judicial review is an essential check against this

threat. Marbury, 5 U.S. (1 Cranch) at 163; see also

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 65

(1976) (Brennan, J., concurring in the judgment) (“In

our modern-day society, dominated by complex legislative programs and large-scale governmental involvement in the everyday lives of all of us, judicial review

of administrative action is essential both for protection

of individuals illegally harmed by that action and to

ensure that the attainment of congressionally mandated goals is not frustrated by illegal action.” (citations

omitted)). Accordingly, this Court has consistently rejected attempts to undermine the effectiveness of judicial review of agency action.

Most directly, the Court has refused to interpret

5 https://www.federalregister.gov/reader-aids/federal-register-

statistics.

statutes to displace the APA’s judicial review provision

without “‘clear and convincing evidence’ of congressional intent to preclude judicial review.” GuerreroLasprilla v. Barr, 589 U.S. 221, 229 (2020) (quoting

Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)).

It has also resisted efforts to undermine the effectiveness of judicial review of agency action. In Corner Post,

for example, the Court adopted an injury-accrual rule

for the APA’s six-year statute of limitations, in part because that rule “vindicates the APA’s ‘basic presumption’ that anyone injured by agency action should have

access to judicial review,” and “respects our ‘deeprooted historic tradition that everyone should have his

own day in court.’” 144 S. Ct. at 2459 (quoting Abbott

Labs., 387 U.S. at 140, and Richards v. Jefferson Cnty.,

517 U.S. 793, 798 (1996)); see also id. at 2463 (Kavanaugh, J., concurring) (“[v]acatur is … essential to

fulfill the ‘basic presumption of judicial review’ for parties who have been ‘adversely affected or aggrieved’ by

federal agency action” (citation omitted)).

The Court has also resisted efforts to use Article III

to shield agency action from judicial review by disregarding the real-world effects of vacating the agency’s

action. In Bennett v. Spear, the Court held that two

irrigation districts had standing to challenge a Biological Opinion by the Fish and Wildlife Service that would

affect the amount of water available to them. 520 U.S.

at 157, 159, 167-168. The government argued that the

plaintiffs had not shown causation or that their injury

would be redressed by vacating the Biological Opinion,

because the Bureau of Reclamation, not the Service,

was the ultimate decisionmaker. Id. at 168-169. The

Court rejected that argument: Although the Biological

Opinion “theoretically serve[d] an ‘advisory function,’”

the Court looked to the real-life “coercive effect” it had

on the Bureau of Reclamation’s decisionmaking to conclude that vacating the Biological Opinion would redress the plaintiffs’ injuries. Id. at 169-171 (citation

omitted).

B. The D.C. Circuit’s decision undermines this important safeguard against unlawful agency action. To

be sure, Article III’s requirements—including redressability—must be satisfied before any suit may be

brought in federal court. Lujan, 504 U.S. at 560. But

the paramount importance of judicial review of agency

action counsels strongly against infusing standing doctrine with heightened and (often) insurmountable evidentiary burdens that are divorced from common sense

and logic. Such burdens are entirely unnecessary to

prevent “mere bystander[s]” who lack “a personal stake

in the dispute” from filing suit in federal court, or to

“assure that the legal questions presented to the court

will be resolved … in a concrete factual context conducive to a realistic appreciation of the consequences of

judicial action.” All. for Hippocratic Med., 602 U.S. at

379-380 (citations and quotation marks omitted). They

instead erect a barrier to judicial redress for entities

that have clearly been harmed by agency action.

Forcing unregulated or indirectly regulated entities

to rely on directly regulated entities’ cooperation to

challenge agency action will shield a vast swath of

agency action from judicial scrutiny. Sometimes businesses that are not directly regulated by agency action

are the most harmed by it, but those that are so regulated may have no intention of mounting a challenge of

their own or facilitating one brought by others.

After all, the interests of regulated entities do not

always align with those that are not directly regulated

but nonetheless harmed. See Pet. 20-21. Regulated

parties may sometimes have powerful incentives to acquiesce in agency regulations that an unregulated entity wishes to challenge. Such regulations may be preferable to other likely alternatives (including potential

legislative alternatives). Some regulations will be

leavened by a valuable benefit or incentive (like federal

funding). Other regulations will have impacts on competitors that may dissuade regulated parties from

bringing suit, such as barriers to entry by competitors,

effects on the marketability of a competitor’s product or

service, and other effects on incumbents’ market advantages. Accord Corner Post, Inc., 144 S. Ct. at 24642465 (Kavanaugh, J., concurring) (collecting examples

of lawsuits challenging agency action favorable to competitors). And in many cases, the simple act of expressing public opposition to a government regulation

may impose heavy political or other costs on a company.

Under any of those circumstances, regulated entities

may have limited or no capacity or appetite for challenging (or facilitating the challenge of) the agency action, especially with regard to harm suffered by unregulated entities. Nonetheless, the logic of the D.C. Circuit’s ruling requires those plainly injured entities to

obtain the active, overt support of companies—

sometimes their own customers—who have chosen, often for good reason, not to assert a challenge themselves. That poses a substantial barrier to judicial review that is not compelled by the Constitution or this

Court’s precedents.

If not corrected, that barrier to judicial review will

block a substantial number of challenges to agency action. Lawsuits by unregulated entities are not uncommon; to the contrary, unregulated parties “often

will sue under the APA to challenge an allegedly unlawful agency rule that regulates others but also has

adverse downstream effects on the plaintiff.” Corner

Post, Inc., 144 S. Ct. at 2460 (Kavanaugh, J., concurring). In fact, there are “entire classes of administrative litigation that have traditionally been brought by

unregulated parties.” Id. at 2464 (collecting examples).

The D.C. Circuit’s decision thus strikes at the heart of

agency litigation, threatening to “insulate a broad

swath of agency actions from any judicial review.” Id.

at 2463.6

Worse still, the decision below was issued by the

court of appeals that exerts the greatest influence on

the development of administrative law, including cases

involving EPA. By statute, Congress has given the

D.C. Circuit exclusive jurisdiction over a range of administrative agency actions, including a significant

amount of rulemaking by EPA. See, e.g., 42 U.S.C.

6 The risk of that insulation is especially high for agencies whose

policies fluctuate dramatically when partisan control of the Executive Branch shifts. This is a case in point: EPA has flip-flopped

between denying a waiver and granting a waiver each time control

of the White House has shifted from one political party to another.

Pet. App. 11a-14a. This dynamic can help shield agency action

from judicial review, as legal challenges can be mooted by a subsequent administration’s repeal or modification of a challenged

rule. See, e.g., Order 1-2, In re Clean Water Act Rulemaking, No.

3:20-cv-06137 (N.D. Cal. Jan. 24, 2024), ECF No. 46 (dismissing

as moot challenge to EPA 2020 Clean Water Act rule because “the

2020 Rule is no longer in effect and has since been superseded by

the 2023 Rule”); Ohio v. EPA, No. 2:15-cv-2467, 2022 WL 866273,

at *1-4 (S.D. Ohio Mar. 23, 2022) (dismissing as moot challenge to

2015 EPA “navigable waters” rule in light of repeal by subsequent

administration), appeal dismissed, No. 22-3292, 2023 WL 6458954

(6th Cir. Sept. 18, 2023).

§ 7607(b) (Clean Air Act).7 As a result, a greater proportion of the D.C. Circuit’s docket consists of agency

litigation than is the case for any other regional circuit

court. See U.S. Courts, U.S. Courts of Appeals – Cases

Commenced, Terminated, and Pending, by Circuit and

Nature of Proceeding, During the 12-Month Period

Ending March 31, 2024, tbl. B-1.8 And because the

D.C. Circuit “handles the vast majority of significant

rulemaking appeals,” it “has been the leader” among

the circuits in developing rules and procedures governing those appeals, including rules and procedures used

to determine standing. Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court,

1978 Sup. Ct. Rev. 345, 348 (1978); see also Patricia M.

Wald, The Contribution of the D.C. Circuit to Administrative Law, in 40 Admin. L. Rev. 507, 508-514 (1988).

Indeed, “the D.C. Circuit—more than any other court

of appeals—has influenced the nature of judicial review of agency decisions.” Susan Low Bloch & Ruth

Bader Ginsburg, Celebrating the 200th Anniversary of

the Federal Courts of the District of Columbia, 90 Geo.

L.J. 549, 576 (2002). Given its prominent role in reviewing agency action, the D.C. Circuit’s decision is

poised to have an outsized influence on agency litigation.

Compounding these problems, the D.C. Circuit’s rule

rewards government bait-and-switch tactics, allowing

overreaching agencies to manipulate federal-court ju7 See also, e.g., Solid Waste Disposal Act § 7006(a)(1), 42 U.S.C.

§ 6976(a)(1); Comprehensive Environmental Response, Compensation, and Liability Act of 1980 § 113(a), 42 U.S.C. § 9613(a); Safe

Drinking Water Act § 1448(a)(1), 42 U.S.C. § 300j-7(a)(1).

8 https://www.uscourts.gov/statistics-reports/caseload-statistics-

data-tables (accessed, July 18, 2024).

risdiction to insulate themselves from any meaningful

judicial review. In this case, for example, the Clean

Air Act authorizes EPA to issue a waiver for California’s LEV and ZEV programs only if the State shows it

has a “need” for its own “standards to meet compelling

and extraordinary conditions.” 42 U.S.C. § 7543(a)-(b);

see Pet. App. 3a-6a. So to request and grant the waiver, California had to argue (and EPA had to conclude)

that the waiver was necessary to reduce fossil-fuel consumption sufficient “to meet compelling and extraordinary conditions” in California.

42 U.S.C.

§ 7543(b)(1)(B); C.A. J.A. 237 (California informed EPA

that the waiver was “critical for incentivizing production and deployment of zero-emission vehicles”) (emphasis added). And to demonstrate that they had

standing to intervene in this case, California and

States that chose to be bound by California’s emissions

standards submitted evidence explaining that if the

waiver were overturned, “additional gasoline-fueled

vehicles would be sold” during the relevant period.

Pet. 11 (quoting Scheehle declaration).

But now that it is trying to shield that same decision

from judicial review, California has changed its tune.

Despite previously explaining why, in its view, an EPA

waiver was necessary, California now proclaims that

the agency’s action was not needed after all, because

industry will voluntarily comply with California’s

emissions restrictions even if they are not in effect.

California cannot have it both ways. Erecting artificially high evidentiary burdens would simply bless efforts, like these, to insulate agency action from judicial

scrutiny and would deprive injured parties, like petitioners here, of their day in court.

Without this Court’s intervention, the D.C. Circuit’s

flawed decision on Article III redressability risks closing the courthouse doors to numerous entities that

have undeniably been injured by agency action. That

outcome, which would undermine the important function of judicial review, is not consistent with this

Court’s standing jurisprudence. At least four circuits

have rejected the D.C. Circuit’s flawed view of redressability. See Pet. 21-24. This Court should resolve the

split now.

CONCLUSION

The Court should grant the petition as to the first

question presented.

Respectfully submitted.

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

Counsel for the Chamber

of Commerce of the United

States of America

LEAH PILCONIS

ASSOCIATED GENERAL

CONTRACTORS OF

AMERICA, INC.

2300 Wilson Blvd.

Suite 300

Arlington, VA 22201

Counsel for Associated

General Contractors of

America, Inc.

August 7, 2024