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

Nos. 24-7, 24-13

In the Supreme Court of the United States

————————

DIAMOND ALTERNATIVE ENERGY, LLC, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

————————

STATE OF OHIO, et al.,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

————————

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

————————

BRIEF IN OPPOSITION FOR THE STATE RESPONDENTS

————————

ROB BONTA

MICHAEL J. MONGAN

Attorney General of California

Solicitor General

TRACY WINSOR

JOSHUA A. KLEIN*

Senior Assistant

TERESA A. REED DIPPO

Deputy Solicitors General

Attorney General

MYUNG PARK

STATE OF CALIFORNIA

Supervising Deputy

EPARTMENT OF JUSTICE

D

Attorney General

1515

Clay Street, 20th Floor

THEODORE MCCOMBS

P.O.

Box

70550

CAITLAN MCLOON

Oakland,

CA 94612-0550

ELAINE MECKENSTOCK

(510)

879-0756

JONATHAN WIENER

Joshua.Klein@doj.ca.gov

Deputy Attorneys General

*Counsel of Record

(Additional counsel listed on signature page)

September 9, 2024

i

QUESTIONS PRESENTED

Section 209(b) of the Clean Air Act, 42 U.S.C.

§ 7543(b), directs EPA to waive preemption as to California’s regulations of automobile emissions if certain

requirements are met. This case concerns California

emission standards that increased requirements for

zero- and low-emission vehicle sales in the State over

model years 2015 through 2025. California applied for

a waiver for those standards in 2012, and EPA granted

it in 2013. Nobody challenged the waiver at that time.

EPA rescinded the waiver in 2019. When EPA reinstated the waiver in 2022, consumer demand for vehicles that satisfied the relevant standards had far

surpassed earlier projections, as well as the standards’

requirements. Two groups of petitioners challenged

that reinstatement in the court of appeals. The questions they seek to present in this Court are:

1. Whether the court of appeals erred in dismissing the private petitioners’ challenge for lack of standing.

2. Whether the 2022 reinstatement of the 2013

waiver contravened the Clean Air Act (a question the

court of appeals did not reach).

3. Whether the court of appeals erred in rejecting

the state petitioners’ theory that Section 209(b) violates constitutional principles of equal sovereignty.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

A. Legal background.............................................. 1

B. Factual and procedural background ................ 3

Argument ..................................................................... 8

Conclusion .................................................................. 34

iii

TABLE OF AUTHORITIES

Page

CASES

Acheson Hotels, LLC v. Laufer

601 U.S. 1 (2023) .................................................. 31

Alabama v. Texas

347 U.S. 272 (1954) .............................................. 27

Am. Trucking Ass’ns, Inc. v. EPA

600 F.3d 624 (D.C. Cir. 2010) .............................. 22

Bankers Life & Cas. Co. v. Crenshaw

486 U.S. 71 (1988) ................................................ 32

Bennett v. Spear

520 U.S. 154 (1997) ........................................ 17, 18

Box v. Planned Parenthood of Ind. &

Ky., Inc.

587 U.S. 490 (2019) .............................................. 20

Chamber of Comm. v. EPA

642 F.3d 192 (D.C. Cir. 2011) ........................ 11, 21

Coyle v. Smith

221 U.S. 559 (1911) .............................................. 29

Dalton Trucking, Inc. v. EPA

846 F. App’x 442 (9th Cir. 2021) .......................... 22

Dep’t of Commerce v. New York

588 U.S. 752 (2019) ........................................ 16, 17

iv

TABLE OF AUTHORITIES

(continued)

Page

Econ. Light & Power Co. v. United

States

256 U.S. 113 (1921) .............................................. 29

Energy Future Coalition v. EPA

793 F.3d 141 (D.C. Cir. 2015) ........................ 19, 20

Engine Mfrs. Ass’n v. EPA

88 F.3d 1075 (D.C. Cir. 1996) .............................. 22

Escanaba & Lake Mich. Transp. Co. v.

Chicago

107 U.S. 678 (1883) .............................................. 29

FDA v. All. for Hippocratic Med.

602 U.S. 367 (2024) ............................ 11, 12, 14, 21

Ford Motor Co. v. EPA

606 F.2d 1293 (D.C. Cir. 1979) ............................ 22

Franchise Tax Bd. of Cal. v. Hyatt

587 U.S. 230 (2019) .............................................. 28

Gen. Land Office of Tex. v. Biden

71 F.4th 264 (5th Cir. 2023) .......................... 18, 19

Gregory v. Ashcroft

501 U.S. 452 (1991) .............................................. 26

Lujan v. Defenders of Wildlife

504 U.S. 555 (1992) .................................. 10, 18, 19

v

TABLE OF AUTHORITIES

(continued)

Page

Massachusetts v. EPA

549 U.S. 497 (2007) .............................................. 17

Mayhew v. Burwell

772 F.3d 80 (1st Cir. 2014) ............................ 31, 33

Motor & Equip. Mfrs. Ass’n, Inc. v. EPA

627 F.2d 1095 (D.C. Cir. 1979) .................... 1, 2, 22

Motor & Equip. Mfrs. Ass’n v. Nichols

142 F.3d 449 (D.C. Cir. 1998) .............................. 22

Motor Vehicle Mfrs. Ass’n v. N.Y. Dep’t

of Env’t Conservation

17 F.3d 521 (2d Cir. 1994) ..................................... 2

Murphy v. NCAA

584 U.S. 453 (2018) .............................................. 31

Murthy v. Missouri

144 S. Ct. 1972 (2024) ........................ 13, 14, 17, 18

NCAA v. Governor of N.J.

730 F.3d 208 (3d Cir. 2013)...................... 30, 31, 33

Nevada v. Watkins

914 F.2d 1545 (9th Cir. 1990) .............................. 33

New York v. Dep’t of Commerce

351 F. Supp. 3d 502 (S.D.N.Y. 2019) ................... 16

New York v. Yellen

15 F.4th 569 (2d Cir. 2021) .................................. 33

vi

TABLE OF AUTHORITIES

(continued)

Page

NRDC v. NHTSA

894 F.3d 95 (2d Cir. 2018) ............................. 19, 20

Oklahoma v. Castro-Huerta

597 U.S. 629 (2022) .............................................. 28

Shelby Cnty. v. Holder

570 U.S. 529 (2013) .................... 7, 8, 27, 29, 30, 33

Skyline Wesleyan Church v. Cal. Dep’t of

Managed Health Care

968 F.3d 738 (9th Cir. 2020) ................................ 19

Smith v. Arizona

144 S. Ct. 1785 (2024) .......................................... 20

West Virginia v. EPA

597 U.S. 697 (2022) .............................................. 26

Wieland v. Dep’t of Health & Hum.

Servs.

793 F.3d 949 (8th Cir. 2015) .......................... 18, 19

Wisniewski v. United States

353 U.S. 901 (1957) (per curiam) ......................... 20

STATUTES

16 U.S.C.

§ 824k(k) ............................................................... 28

§ 824p(k) ............................................................... 28

§ 824q(h) ............................................................... 28

§ 824t(f ) ................................................................ 28

vii

TABLE OF AUTHORITIES

(continued)

Page

42 U.S.C.

§ 7408(a) ............................................................... 24

§ 7507 ................................................................ 2, 28

§ 7521(a) ........................................................... 2, 26

§ 7521(b)(3) ........................................................... 13

§ 7543(a) ................................................................. 2

§ 7543(b)(1) ................................................. 2, 23, 25

§ 7543(b)(1)(A) .................................................. 2, 23

§ 7543(b)(1)(B) .............................................. 2, 5, 25

§ 7543(b)(1)(C) .................................................. 2, 23

§ 7586(f )(4) ........................................................... 24

§ 7607(b)(1) ................................................. 8, 21, 33

49 U.S.C.

§ 31113(a) ............................................................. 28

§ 32919(a) ............................................................... 4

Clean Air Act

§ 209 ........................................................ 2, 5, 21, 32

§ 209(b) ............. 2, 5, 7, 8, 20, 23, 25, 27, 29, 31, 32

§ 209(b)(1) ....................................................... 25, 26

§ 209(b)(1)(B) .................................................... 5, 26

§ 209(b)(1)(C) ........................................................ 25

Pub. L. No. 88-206, 77 Stat. 392 (1963) ...................... 1

Pub. L. No. 89-272, 79 Stat. 992 (1965) ...................... 1

Pub. L. No. 90-148, 81 Stat. 485 (1967) ...................... 1

Pub. L. No. 95-95, 91 Stat. 755 (1977) .................. 2, 25

viii

TABLE OF AUTHORITIES

(continued)

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I

§ 8, cl. 1 ................................................................. 27

§ 8, cl. 3 ................................................................. 27

§ 8, cl. 4 ................................................................. 27

§ 9, cl. 6 ................................................................. 27

COURT RULES

D.C. Cir. R. 28(a)(7) ................................................... 10

OTHER AUTHORITIES

58 Fed. Reg. 4166 (Jan. 13, 1993) ......................... 3, 24

78 Fed Reg. 2112 (Jan. 9, 2013) .................................. 3

86 Fed. Reg. 74438 (Dec. 30, 2021) ........................... 13

87 Fed. Reg. 14333 (Mar. 14, 2022) ............................ 4

88 Fed Reg 88908 (Dec. 26, 2023) ............................. 21

Br. for Petrs. in Energy Future

Coalition v. EPA

2015 WL 661314 (D.C. Cir.) ................................. 19

Br. of NRDC in NRDC v. NHTSA

2018 WL 121065058 (2d Cir.) ................................ 3

ix

TABLE OF AUTHORITIES

(continued)

Page

EPA, Vehicle Emissions California

Waivers and Authorizations,

https://tinyurl.com/3rxscztw .................................. 3

Order, Union of Concerned Scientists v.

NHTSA, No. 19-1230 (D.C. Cir. Feb.

3, 2021) ................................................................... 4

Suppl. Br. for Intervenors in Support of

Petrs. in NRDC v. NHTSA

2024 WL 3874762 (D.C. Cir.) ............................... 16

Suppl. Br. of Petr. Am. Fuel &

Petrochemical Mfrs. & State Petrs.

in NRDC v. NHTSA

2024 WL 3888251 (D.C. Cir.) ......................... 16, 17

This Is Why New-Car Model Years

Aren’t in Sync with the Calendar,

Car & Driver (Nov. 11, 2016),

https://tinyurl.com/ytu2s6vv .................................. 3

1

STATEMENT

A. Legal Background

As originally enacted in 1963, the Clean Air Act did

not regulate motor vehicle emissions. See Pub. L. No.

88-206, 77 Stat. 392 (1963). Federal regulation on

that subject began when Congress amended the Act in

1965. Pub. L. No. 89-272, 79 Stat. 992 (1965). By that

time, California had been regulating vehicle emissions

for almost a decade. See Motor & Equip. Mfrs. Ass’n,

Inc. v. EPA, 627 F.2d 1095, 1109 & n.26 (D.C. Cir.

1979) (MEMA I ).

In 1967, Congress struck a balance regarding the

preemption of state vehicle-emission regulations.

MEMA I, 627 F.2d at 1109-1110. Although California’s existing program had proven the value of statelevel innovation, id. at 1111, manufacturers “wanted

to avoid the economic disruption” and “‘economic

strain’” that would come from “having to meet fiftyone separate sets of emission control requirements,” id.

at 1109. Congress therefore preempted state programs of emissions control for new vehicles, but instructed EPA to waive preemption for California

under certain circumstances. Id.; see Pub. L. No. 90148, § 208, 81 Stat. 485, 501 (1967). This ensured that

manufacturers would face no more than two different

sets of emission regulations.

The 1967 provision required each individual California standard to be “more stringent” than its federal

counterpart. MEMA I, 627 F.2d at 1110 & n.32. But

that limited California’s ability to address a pressing

public health need—reducing nitrogen oxides—because existing technological limitations made it impossible to tighten standards for those pollutants

2

without relaxing controls for others. Id. Congress responded in 1977 by specifying that a waiver is justified

if the state standards would be, “in the aggregate,” as

“protective of public health and welfare” as “Federal

standards.” Pub. L. No. 95-95, § 207, 91 Stat. 685, 755

(1977).

As a result of the 1977 amendments, Section 209 of

the Clean Air Act generally preempts States from enforcing standards concerning new motor vehicle emissions. 42 U.S.C. § 7543(a). Section 209(b) instructs

EPA to “waive application” of that section “to any

State which” had adopted qualifying vehicle emission

standards “prior to March 30, 1966,” if “the State determines that the State standards will be, in the aggregate, at least as protective of public health and

welfare as applicable Federal standards.”

Id.

§ 7543(b)(1); see Ohio Pet. App. 11a (noting that California is the only State that had adopted qualifying

standards by March 1966). But subsection (b) further

provides that EPA shall not grant the waiver if it finds

any of three circumstances met: that the State’s protectiveness determination is “arbitrary and capricious,”

42 U.S.C. § 7543(b)(1)(A); that the “State does not

need such State standards to meet compelling and extraordinary conditions,” id. § 7543(b)(1)(B); or that the

standards are inconsistent with a separate provision

requiring

consideration

of

feasibility,

id.

§ 7543(b)(1)(C); see id. § 7521(a).

The 1977 amendments also made “an effort to assist” other States by adding a new provision. Motor

Vehicle Mfrs. Ass’n v. N.Y. Dep’t of Env’t Conservation,

17 F.3d 521, 527 (2d Cir. 1994). That provision allows

other States to choose to adopt and enforce standards

“identical to the California standards for which a

waiver has been granted.” 42 U.S.C. § 7507. But

3

States are under no compulsion to do so—and if they

do not, then the California standards do not govern

within their borders.

Since 1967, California has received more than 75

waivers.1 Through those waivers, California has required increasingly better emissions performance, fostering development of new technologies ranging from

catalytic converters to zero-emission vehicles. C.A.

J.A. 347-349, 353-354. California received its first

waiver for zero-emission vehicle standards three decades ago, 58 Fed. Reg. 4166 (Jan. 13, 1993), and has

been requiring manufacturers to sell increasing percentages of those vehicles in California since model

year 1998, see 78 Fed. Reg. 2112, 2119 (Jan. 9, 2013).

B. Factual and Procedural Background

1. In 2012, California applied for a waiver for the

addition of Advanced Clean Cars standards to its

emissions program. Those standards aimed to reduce

both carbon dioxide emissions and “criteria pollutants”

(particulate matter and smog-creating chemicals).

C.A. J.A. 137. They included both low-emission and

zero-emission vehicle requirements that gradually increased over model years 2015 to 2025. Id. at 151-154;

Ohio Pet. App. 17a-18a.2 EPA granted the waiver in

1 See EPA, Vehicle Emissions California Waivers and Authoriza-

tions, https://tinyurl.com/3rxscztw.

2 Given

how model years are defined, see 42 U.S.C.

§ 7521(b)(3)(A), model year 2025 could begin as soon as January

2, 2024. See, e.g., This Is Why New-Car Model Years Aren’t in

Sync with the Calendar, Car & Driver (Nov. 11, 2016), https://tinyurl.com/ytu2s6vv (Kia “began selling its new 2016 Sorento in

January 2015”).

4

2013; no one challenged that action in court; and manufacturers “began making investments” to meet the

future requirements. Ohio Pet. App. 18a.

In 2018, after manufacturers had already “adjusted their fleets,” EPA proposed to withdraw the

2013 waiver as to zero-emission requirements and

greenhouse gas requirements. Ohio Pet. App. 18a.

EPA withdrew the waiver the following year, giving

three reasons: First, EPA decided to depart from its

longstanding approach of asking whether California

needs its emissions program as a whole to “meet compelling and extraordinary conditions,” and instead

evaluate California’s need for individual standards.

Id. at 19a; see infra p. 25. Second, it concluded that

standards involving greenhouse gases should not receive waivers because climate change is global rather

than particular to California. Ohio Pet. App. 18a.

Third, it observed that the National Highway Traffic

Safety Administration at that time viewed the Energy

Policy and Conservation Act (EPCA), 49 U.S.C.

§ 32919(a), as preempting state efforts to address

greenhouse gas emissions from vehicles. Id. at 18a.3

EPA proposed to revisit its decision to withdraw

the waiver in 2021. Ohio Pet. App. 19a. In March

2022 it issued a new decision reinstating the portions

of the waiver it had withdrawn. Id. at 20a; 87 Fed.

Reg. 14333. The reinstatement was based on three rationales. First, EPA concluded that the 2019 withdrawal had exceeded EPA’s reconsideration authority

and undercut important reliance interests. Ohio Pet.

3 California and others sought judicial review of EPA’s waiver

withdrawal. Those cases were later held in abeyance pending

administrative reconsideration. Order, Union of Concerned Scientists v. NHTSA, No. 19-1230 (D.C. Cir. Feb. 8, 2021).

5

App. 20a. Second, it determined that the 2019 decision was wrong to reject EPA’s traditional approach of

considering California’s need for its “whole program.”

Id. And third, it determined that its waiver decisions

should be based on the statutory criteria in Section

209, which do not address EPCA preemption. Id.

2. In May 2022, two sets of petitioners sought review in the D.C. Circuit of EPA’s 2022 decision to reinstate the 2013 waiver: private fuel companies,

including Diamond Alternative Energy; and a group of

States, led by Ohio. Ohio Pet. App. 20a. Another

group of States and local governments, led by California, intervened in defense of the reinstatement. Id.

So did four groups of private entities, including one

comprising five major automobile manufacturers. Id.

at 21a & n.6.

On the merits, the private petitioners principally

argued that the reinstatement contravened Section

209(b)(1)(B). C.A. Diamond Br. 17-53. The state petitioners primarily argued that Section 209(b) is unconstitutional because it “leaves California with

sovereign authority that the Act takes from every

other State.” C.A. Ohio Br. 1; see id. at 16-32. On reply, the state petitioners additionally argued that the

statute was unconstitutional “as applied” to the particular waiver here, C.A. Ohio Reply Br. 10, because

its “‘disparate geographic coverage is’ not ‘sufficiently

related to the problem that it targets,’” id. at 15.

Petitioners’ opening briefs included short sections

addressing standing. C.A. Diamond Br. 16-17; C.A.

Ohio Br. 14-16. California challenged petitioners’ failure to point to evidence about whether vacatur would

affect sales of gasoline vehicles, C.A. Cal. Br. 9-15, and

submitted a declaration disputing that manufacturers

would “sell fewer zero-emission vehicles” if the waiver

6

decision were vacated, C.A. Cal. Br. Add. 85; see id. at

84-103. Petitioners did not point to contrary evidence

on reply. See C.A. Diamond Reply Br. 3-5. After oral

argument, the private petitioners sought leave to file

a supplemental brief with attached declarations. C.A.

Diamond Proposed Suppl. Br. 1. The brief mostly addressed mootness, id. at 4-13, but included a short section on standing, id. at 3-4.

3. The court of appeals rejected the challenges to

EPA’s 2022 reinstatement of the 2013 waiver.

With respect to the private petitioners, the court

held that their submissions on standing fell “far short

of meeting their burden of demonstrating a ‘substantial probability’ that their alleged injuries would be redressed by a favorable decision by this Court.” Ohio

Pet. App. 27a. The private petitioners had “assert[ed] . . . without explanation or citation—that this

Court could redress their injuries ‘by setting aside

[EPA’s] action.’” Id.

Mere assertions were not

enough, however, because any injuries “would be redressed only if automobile manufacturers”—the parties directly affected by the waiver—“responded to

vacatur” by “producing and selling fewer non-conventional vehicles or by altering the prices of their vehicles such that fewer non-conventional vehicles—and

more conventional vehicles—were sold.” Id. at 27a28a.

But manufacturers were “transition[ing] toward

electric vehicles, irrespective of California’s regulations,” due to “‘market forces’” in that State. Ohio Pet.

App. 29a n.8. And evidence indicated that “manufacturers need years of lead time” to “make changes to

their future model year fleets.” Id. at 28a-29a. In the

face of that reality, petitioners had not “attempt[ed] to

7

explain in any detail how their injuries are redressable.” Id. at 30a. Because their showing on standing

was “deficient from the start,” id. at 31a, petitioners’

primary contention at oral argument—that California

had not demonstrated mootness—was non-responsive,

id. at 30a-31a.

The court also denied the private petitioners’ postargument motion to file a supplemental brief and additional declarations. Ohio Pet. App. 35a-38a. It reasoned that petitioners had ample prior notice of the

imperative to establish redressability given the

waiver’s timeframe, the record evidence, California’s

arguments against standing, and circuit precedent.

Id. at 37a; see also id. at 31a-34a. Petitioners failed to

demonstrate good cause for their late submissions. Id.

at 36a-38a.

Turning to the state petitioners, the court held

they had standing to raise their equal sovereignty

claim. Ohio Pet. App. 38a-40a. But it rejected their

claim on the merits. Id. at 41a-54a. It first recognized

that the claim was facial in nature: The state petitioners argued that Section 209(b) violates “a categorical

bar” that “prohibits Congress from enacting [commercial] legislation that leaves some states with more sovereign authority than others, regardless of Congress’s

reasons for doing so.” Id. at 42a. The court of appeals

held that petitioners forfeited any as-applied claim

that the waiver at issue here was not “‘sufficiently related to the problem that it targets’” by failing to raise

it until reply. Id.

As to the facial theory, petitioners argued that under Shelby County v. Holder, 570 U.S. 529 (2013), Congress may not exercise its Commerce Clause power in

a way that leaves States with unequal regulatory authority. As the court of appeals explained, however,

8

Shelby County emphasized that the unequal treatment of States under the Voting Rights Act was an

“‘extraordinary’” situation, involving a “‘drastic departure from basic principles of federalism.’” Ohio

Pet. App. 44a. Congress had “intruded on states’

power to regulate elections, a ‘sensitive area of state

and local policymaking,’ which ‘the Framers of the

Constitution intended the States to keep for themselves.’” Id. Any inequality in Section 209(b) was

quite different, given that the Framers intended Congress to regulate interstate commerce. Id. at 44a-45a.

Nor had Shelby County announced any “categorical

bar” on Congress’s authority to differentiate among

States. Id. at 45a-46a.

The court concluded that the other precedents invoked by petitioners were also off-point. The “equal

footing” cases, which prohibit Congress from “plac[ing]

limits on new states as a condition of admission to the

Union,” “do not directly apply” outside “the admission

context.” Ohio Pet. App. 45a-46a. Indeed, those cases

acknowledge that Congress can treat States differently “within the scope of its plenary powers over interstate commerce.” Id. at 47a. And petitioners’

contrary arguments were not supported by constitutional text, founding era history, or petitioners’ analogy to the law of nations. Id. at 48a-53a.

ARGUMENT

The original waiver in this case authorized California to impose certain vehicle-emissions standards that

gradually increased between model years 2015 and

2025. Ordinarily, challenges to such waivers are filed

immediately after issuance. 42 U.S.C. § 7607(b)(1).

But nobody challenged this waiver when it was

granted in 2013, and automakers operated under it for

years, until it was temporarily revoked in 2019. By

9

the time petitioners sought judicial review of the 2022

reinstatement of the waiver, sales of pertinent vehicles far exceeded any requirement of the challenged

standards, due to consumer demand and the investments and plans already made by manufacturers. In

light of those circumstances, the court of appeals held

that private petitioners lacked standing for their statutory claim because they failed to demonstrate that

judicial relief would have any real-world effect on fuel

sales (the basis for their asserted injury). It also rejected the state petitioners’ constitutional claim on the

merits.

Both holdings are correct, and petitioners have not

identified any persuasive reason for this Court to review either issue—or to tackle the statutory question

that the court of appeals did not reach because it

lacked jurisdiction. None of the questions implicates

an actual conflict of authority. The standing question

turns on the application of settled law to an unusual

record involving market conditions in 2022, the atypical events following the 2013 waiver, and petitioners

who forewent any genuine effort to establish redressability. Petitioners’ flawed statutory arguments have

not been squarely addressed by any lower court. And

their constitutional theory lacks support in precedent—for good reason, because it is contrary to text,

history, and longstanding congressional practice.

1. The private petitioners first argue that the D.C.

Circuit erred in applying standing doctrine to the

unique circumstances of their administrative challenge. There was no error: it was petitioners’ burden

to establish redressability as of the time they sought

review in May 2022, but they failed to identify any

particular basis for concluding that third-party automakers would respond to eliminating the 2013

10

waiver in ways that would redress their asserted injury. Petitioners’ disagreement with the application

of settled legal principles to specific facts would not

warrant certiorari in any event—and this Court’s review is especially unwarranted given the rapidly fading relevance of the order they seek to challenge.

a. There is no dispute over the general legal standards that apply to this question. Compare Diamond

Pet. 15-16, with Ohio Pet. App. 22a-24a. To bring suit,

a party must have “suffered an ‘injury in fact’”; that

injury must be “‘fairly . . . trace[able] to the challenged

action of the defendant’”; and it must be “‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). “The

party invoking federal jurisdiction bears the burden of

establishing these elements.” Id. at 561. At each

“stage[] of the litigation,” “each element must be supported in the same way as any other matter on which

the plaintiff bears the burden of proof.” Id.; see also

D.C. Cir. R. 28(a)(7) (when petitioners seek direct review of administrative action, if “standing is not apparent from the administrative record, the brief must

include arguments and evidence establishing the

claim of standing”).

There is “ordinarily little question” about standing

if the party invoking jurisdiction “is [it]self an object

of the” challenged action. Lujan, 504 U.S. at 561. But

“much more is needed” if that action regulates “someone else”—that is, where causation and redressability

depend on choices “‘made by independent actors not

before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either

to control or predict.’” Id. at 562. In that scenario, a

plaintiff may not rest on “speculative” suppositions

11

about “how third parties would react to government

action or cause downstream injury to plaintiffs.” FDA

v. All. for Hippocratic Med., 602 U.S. 367, 383 (2024).

Rather, it “must show that the third parties will likely

react in predictable ways that in turn will likely injure

the plaintiffs,” id. (internal quotation marks omitted),

which makes standing “substantially more difficult to

establish,” id. at 382 (internal quotation marks omitted).

b. The court of appeals faithfully applied those

standards to the unique circumstances before it.

i. Petitioners’ asserted “injuries ‘hinge[] on’ the actions of third parties—the automobile manufacturers

who are subject to the waiver.” Ohio Pet. App. 27a. To

establish standing, petitioners needed to show that

manufacturers would likely respond to a favorable judicial decision—in 2022—by changing their fleets in a

way that alleviates petitioners’ claimed injuries. Id.

at 28a. Circuit precedent addressing analogous circumstances had refused to “presume redressability”

and “expressed serious doubts that [prior litigants]

had met their burden of demonstrating redressability.”

Id. at 32a (citing Chamber of Com. v. EPA, 642 F.3d

192, 205-206 (D.C. Cir. 2011)).

But the private petitioners treated the subject “as

a foregone conclusion.” Ohio Pet. App. 30a. They devoted just two paragraphs in their opening brief to

standing—and a single sentence to redressability. C.A.

Diamond Br. 16-17. They failed “to explain in any detail how their injuries are redressable,” or point to any

evidence (within or outside the record) bearing on that

subject. Ohio Pet. App. 30a. The declarations petitioners referenced were “conclusory,” id. at 27a: they

simply stated declarants’ “understand[ing]” that California’s standards covered by the waiver reduced fuel

12

sales. E.g., C.A. Diamond Br. Add. 15, 23, 31. None

addressed whether automakers—starting in 2022—

would alter plans or designs if the waiver reinstatement were vacated.

In contrast, California’s expert declaration explained that, by 2022, the market share of vehicles in

California that qualified for compliance “exceed[ed]

what California’s standards require.” C.A. Cal. Br.

Add. 88. Consumers were willing to pay premium

prices for zero-emission vehicles, id., and multiple

manufacturers planned to “sell substantially more

zero-emission vehicles in the future than the standards at issue in this litigation required,” id. at 98. In

short, petitioners had not “established any probability

that manufacturers would change course if EPA’s decision were vacated.” C.A. Cal. Br. 15. Yet even after

California’s declaration was filed, petitioners failed to

“meaningfully address[] the redressability of their economic injuries in their reply briefs.” Ohio Pet. App.

34a.

That left the court of appeals without any “basis to

conclude that Petitioners’ claims are redressable” and

deprived it of jurisdiction to consider the private petitioners’ statutory claim. Ohio Pet. App. 34a; see All.

for Hippocratic Med., 602 U.S. at 383 (“speculation

about the unfettered choices made by independent actors not before the courts” does not establish standing).

ii. The private petitioners contend that “the court

of appeals blinded itself to the obvious,” asserting that

vacatur of the reinstatement would provide them redress because “automakers will make more vehicles

that run on liquid fuel” or adjust prices in ways that

increase fuel consumption. Diamond Pet. 14, 18. As

the court of appeals recognized, however, see Ohio Pet.

App. 28a-30a, the circumstances bely that assertion.

13

By the time this suit was filed, it was not “obvious”

(Diamond Pet. 14) that vacatur would likely affect

manufacturers’ future behavior. Ohio Pet. App. 29a.

To the extent petitioners’ brief and declarations addressed that subject, they relied exclusively on predictions made in 2011 and 2012 that the standards would

lessen consumption of gasoline products. See, e.g., C.A.

Diamond Br. 16. By 2022, those predictions were outdated. Manufacturers had “accelerat[ed their] transition to electrified vehicles”—even between 2018 and

2021, when the waiver was purportedly withdrawn.

86 Fed. Reg. at 74438, 74486. That trend was caused

by investments that manufacturers “had already

made in updating their fleets” (Ohio Pet. App. 19a)

and by consumer demand (id. at 29a n.8): sales of the

pertinent vehicles in California in 2022 exceeded any

requirement of the standards imposed through this

waiver, and consumers desired those vehicles enough

to pay significant premiums. C.A. Cal. Br. Add. 8788.4

No doubt, when EPA first granted the waiver in

2013, the waiver (or its vacatur) would likely alter automaker decisions. But standing is assessed as of the

time a suit is filed. Murthy v. Missouri, 144 S. Ct. 1972,

1986 (2024). Given the evidence about what was happening when petitioners filed these challenges in May

2022, the court of appeals could not simply assume

that the reinstated waiver—rather than consumer

choice and technologies created by manufacturers’ intervening investments—would determine plans and

4 Moreover,

the standards at issue would cease increasing at

model year 2026. Yet automakers, for their own reasons, planned

to continue increasing their production of zero-emission vehicles

afterwards. C.A. Cal. Br. Add. 98-99.

14

production in the years ahead. See, e.g., Ohio Pet. App.

29a n.8.

Petitioners’ remaining critiques of the court of appeals’ analysis are unpersuasive. They argue that the

missing link as to redressability was supplied by statements in the state respondents’ motion to intervene.

Diamond Pet. 11, 20 (citing C.A. Cal. Int. Mot.

Scheehle Decl. ¶¶ 17-18 & Vanderspek Decl. ¶ 22).

But petitioners never informed the court that those

statements—supplied by a different party, in a different context, in one of five unopposed motions to intervene that were decided nearly two years earlier—

should bear on petitioners’ standing. Cf. Murthy, 144

S. Ct. at 1991 n.7 (“‘[J]udges are not like pigs, hunting

for truffles buried [in the record].’”). In any event, “expect[ations]” (C.A. Cal. Int. Mot. Vanderspek Decl.

¶ 22) that supported a preliminary motion to intervene could not substitute for the facts petitioners

needed to establish jurisdiction for final relief on the

merits.5

Petitioners also highlight (Diamond Pet. 12-13) the

denial of their motion to file supplemental declarations after oral argument. See Ohio Pet. App. 35a-38a.

But they do not seek review of that case-specific denial

or argue that it was wrong, for good reason. The court

of appeals reasonably determined that petitioners

failed to show good cause for introducing new evidence

and arguments so late in the game. Id. at 36a. Petitioners “should have been aware” from the outset that

5 By

granting California’s unopposed motion to intervene, the

court of appeals did not necessarily find that reinstating the

standards would affect the mix of cars sold. California’s interest

was “easy to establish” because California was a directly regulated party: with the waiver, its standards have legal force; without it, they do not. All. for Hippocratic Med., 602 U.S. at 382.

15

redressability would be at issue given the nature of

their challenge. Id. at 37a; see supra pp. 3-4, 10-11.

And any suggestion that redressability was not raised

until oral argument was simply “false”: California’s

brief “explicitly argued that Fuel Petitioners had offered no evidence regarding the redressability of their

injuries,” Ohio Pet. App. 37a; see Diamond Pet. 11, yet

petitioners failed to respond.6

Finally, petitioners portray the court of appeals’

decision as instituting a new rule requiring affidavits

from directly regulated parties to support challenges

by unregulated parties. See Diamond Pet. 20 (“it appears that the only kind of evidence the court would

have found sufficient is an affidavit from an automaker itself ”); see also id. at 4, 14, 21. But the court

imposed no such requirement. Petitioners could have

pointed to secondary sources, or offered declarations

from others about market conditions and automaker

practices. Cf. Ohio Pet. App. 33a-34a (describing California’s declaration). The court also demonstrated its

willingness to consider comments, studies in the administrative record, and public statements from regulated entities. Id. at 29a, 33a.7 The problem was that

6 Even their untimely, post-argument submission contained a no-

ticeable gap: Petitioners argued only that automakers had the

ability to adjust their offerings in reaction to a judicial decision—

they disavowed any attempt to show that manufacturers would

likely do so, or to address market conditions. C.A. Diamond Proposed Suppl. Br. 1-3.

7 When describing the decision below to the D.C. Circuit in an-

other matter, many of these petitioners indicated it does not pose

the kind of barrier to standing that they profess here to be worried about. They stated that it “does not affect” unregulated challengers’ ability to establish redressability where the federal

(continued…)

16

petitioners failed to produce any evidence bearing on

this topic when they were required to do so, and the

court could not simply assume that evidence existed.

c. Petitioners contend that the decision below contravenes this Court’s precedent and creates a conflict

of lower court authority. Diamond Pet. 15-24. They

are incorrect.

i. As to Supreme Court precedent, petitioners accuse the court of appeals of ignoring cases holding that

“challengers to governmental action can rely on the

‘predictable effect’ of regulation on third parties to establish causation and redressability.” Diamond Pet. 4;

see id. at 16-20. They first point to Department of

Commerce v. New York, 588 U.S. 752 (2019), which

they describe as excusing them from any requirement

to produce “robust record evidence.” Diamond Pet. 17.

But the state plaintiffs in that case supported their

standing theory with specific and contemporaneous

evidence—including expert testimony, comprehensive

studies, and detailed memoranda—demonstrating

that adding a citizenship question to the census would

“result in noncitizen households responding to the census at lower rates than other groups,” and thereby

lead to reduced representation and funding. 588 U.S.

at 767; see New York v. Dep’t of Commerce, 351 F. Supp.

3d 502, 578-581 (S.D.N.Y. 2019). This Court’s holding

on standing rested on a district court’s “findings of

fact,” following a bench trial with that evidence. 588

agency projected an emission standard’s effect on fuel consumption. Suppl. Br. for Intervenors in Support of Petrs., NRDC v.

NHTSA, No. 22-1080, 2024 WL 3874762, at *3-4 (filed Aug. 19,

2024); see Suppl. Br. of Petr. Am. Fuel & Petrochemical Mfrs. &

State Petrs., NRDC v. NHTSA, supra, 2024 WL 3888251, at *3

(filed Aug. 19, 2024) (similar).

17

U.S. at 767. The unsupported speculation advanced

by petitioners here is not remotely comparable.

Next, petitioners imply that Massachusetts v. EPA,

549 U.S. 497 (2007), relied on an agency’s “own statements” about how third parties would behave in response to the agency’s action. Pet. 17. But even if that

were true, there would be no conflict: here, as one of

the private petitioners has acknowledged, “EPA had

made no findings about how much fuel consumption

would be displaced by its 2022 order reinstating California’s preemption waiver.”8 Moreover, standing in

Massachusetts was based not solely on the agency’s

“own statements and programs,” Diamond Pet. 17, but

also on “affidavits” submitted by the challengers, 549

U.S. at 526. And this Court’s holding reflected a special solicitude for state plaintiffs—which “does not apply” to private litigants. Murthy, 144 S. Ct. at 1996

n.11; see Massachusetts, 549 U.S. at 520.

Petitioners assert that Bennett v. Spear, 520 U.S.

154 (1997), leaves “little question” that plaintiffs have

standing to contest “‘injur[ies] produced by determinative or coercive effect[s]’ of the challenged regulation

‘upon the action of someone else.’” Diamond Pet. 1516. But that argument begs the question: it was petitioners’ burden to show that California’s decade-old

standards would “determin[e] or coerc[e]” automakers’

choices at the time petitioners filed their challenge.

They failed to do so. What is more, Bennett was decided on a motion to dismiss, 520 U.S. at 167-168, a

posture in which “general factual allegations” “suffice”

and courts “‘presum[e]’” that the allegations “‘embrace those specific facts that are necessary to support

8 Suppl. Br. of Petr. Am. Fuel & Petrochemical Mfrs. & State

Petrs, NRDC v. NHTSA, supra, 2024 WL 3888251, at *8.

18

the claim,’” Lujan, 504 U.S. at 561. Petitioners here

sought to prevail on the merits, requiring them to establish (not presume) facts supporting redressability.9

A more relevant precedent is the recent decision in

Murthy, where plaintiffs alleged that federal officials

had pressured private internet platforms to remove

users’ posts. 144 S. Ct. at 1984. This Court held that

the plaintiffs failed to establish causation and redressability. Id. at 1993-1996. One consideration was that

the platforms had “independent incentives” to engage

in content moderation, id. at 1987-1988, and in fact

did so even absent governmental requests, id. at 1995.

Likewise, automakers are independently motivated to

respond to consumer demand, and produced vehicles

that satisfy California’s standards beyond any level

required by those standards. See supra p. 13.

ii. Nor does the decision below “create[] a conflict

among the courts of appeals.” Diamond Pet. 21 (capitalization omitted).

Two of the decisions petitioners cite reviewed

standing at the motion-to-dismiss stage. See Gen.

Land Office of Tex. v. Biden, 71 F.4th 264 (5th Cir.

2023); Wieland v. Dep’t of Health & Hum. Servs., 793

F.3d 949 (8th Cir. 2015). Petitioners assert that General Land Office relied on a “commonsense” point that

border walls affect migrant crossings. Diamond Pet.

22. But the Fifth Circuit made clear that its ruling

was based on the “‘presum[ptions]’” that apply “[a]t

9 Bennett is so different from this case that it is hardly surprising

the court of appeals followed private petitioners’ lead and did not

cite it below. Compare Diamond Pet. 20 (criticizing court of appeals for not discussing Bennett), with C.A. Diamond Br. 16-17

(not discussing Bennett), C.A. Diamond Reply Br. 3-6 (same).

19

the pleading stage,” and also reflected “‘special solicitude’” for state standing. General Land Office, 71

F.4th at 272, 274. Neither consideration aids the Diamond petitioners here. The Eighth Circuit’s decision

in Wieland similarly turned on Lujan’s directive that

“‘general factual allegations’” suffice at the pleading

stage. 793 F.3d at 954. The possibility that the regulated insurers in that case might not alter coverage in

response to court action did not preclude the plaintiffs

from proceeding, because the court was “accepting as

true all factual allegations in the complaint and drawing all reasonable inferences in [the plaintiff’s] favor.”

Id. at 953.

The decisions in NRDC v. NHTSA, 894 F.3d 95 (2d

Cir. 2018), and Skyline Wesleyan Church v. California

Department of Managed Health Care, 968 F.3d 738

(9th Cir. 2020), did not rest on mere “‘common sense’”

assumptions about how regulated parties would react

to regulatory changes. Diamond Pet. 22-23. In NRDC,

causation and redressability were “establish[ed]” by

“the record”—including a sworn declaration about automakers’ particular economic incentives, and agency

analyses that showed no sign of having been superseded by time. NRDC, 894 F.3d at 104-105 (emphasis

added); see Br. of NRDC, 2018 WL 1210650, at *28

(filed Mar. 6, 2018) (discussing calculations in declaration). In Skyline, the “determinative or coercive effect” of the challenged action—an agency’s warning to

insurers—was proven with evidence: “seven insurers”

had “offered plans with abortion coverage restrictions,” then “[a]ll seven” ceased doing so after receiving the regulator’s warning that such restrictions

were illegal. 968 F.3d at 750.

Finally, petitioners assert an intra-circuit conflict

with Energy Future Coalition v. EPA, 793 F.3d 141,

20

143 (D.C. Cir. 2015), which concerned a rule that prohibited manufacturers from using certain fuels during

emissions testing. It is “primarily the task of a Court

of Appeals to reconcile its internal difficulties,”

Wisniewski v. United States, 353 U.S. 901, 902 (1957)

(per curiam), but petitioners never sought rehearing

based on the purported conflict. Perhaps because no

conflict exists: Energy Future relied on evidence establishing “substantial reason to think that at least

some vehicle manufacturers would use” the challengers’ fuels if EPA changed its regulation. 793 F.3d at

144. The record included automakers’ statements and

an economist’s explanation of how the regulation affected manufacturers’ choices. See id. at 145; Br. for

Petrs., 2015 WL 661314, at *32 (filed Feb. 12, 2015).

Indeed, Energy Future distinguished its record from a

case like this one, where “objective evidence” and “empirical studies” “undermined petitioners’ theory of

standing.” 793 F.3d at 145 n.2; cf. Ohio Pet. App. 33a34a.

2. The private petitioners argue that this Court

should also grant certiorari as to whether EPA

properly interpreted Section 209(b), a question that

the court of appeals did not reach because of its jurisdictional holding. But this is a Court “‘of review, not

of first view.’” Smith v. Arizona, 144 S. Ct. 1785, 1801

(2024). That principle applies with special force where

(as here) petitioners seek to raise an “issue[] of first

impression” that no lower court has ever directly addressed. Box v. Planned Parenthood of Ind. & Ky., Inc.,

587 U.S. 490, 496 (2019) (Thomas, J., concurring). Petitioners identify no persuasive reason for this Court

to depart from that principle here.

a. Petitioners argue that this Court should review

the statutory question now because “California’s

21

waiver expires at the end of model year 2025, [and] it

is quite possible the D.C. Circuit will not decide the

merits on remand in time for this Court’s subsequent

review.” Diamond Pet. 26. But even if petitioners

were correct in predicting that the D.C. Circuit would

not have adequate time to reach the statutory merits

on remand, another waiver case could come to this

Court relatively soon. Requests for waivers covering

model years well beyond 2025 are currently pending

with EPA. See, e.g., 88 Fed. Reg. 88908 (Dec. 26,

2023).10 If one is granted and a proper challenge is

filed within 60 days, see 42 U.S.C. § 7607(b)(1), the

court of appeals can resolve the merits and this Court

could consider whether to review that judgment. If the

pending requests are not granted, it will work no harm

for the issue to have been “resolved by the political

branches” instead of this Court. All. for Hippocratic

Med., 602 U.S. at 380.

Petitioners fail to support their accusation that the

D.C. Circuit has “contrived” over time to meet “each

challenge to EPA’s waiver determination[s] with a different jurisdictional barrier.” Diamond Pet. 3, 14. Out

of dozens of waivers granted under Section 209, petitioners identify only one other case in which the challenge was dismissed on jurisdictional grounds. Id. at

8 (citing Chamber of Com. of U.S. v. EPA, 642 F.3d 192

(D.C. Cir. 2011) (Henderson, Garland, and Brown,

10 Some of these petitioners are also challenging a 2023 waiver—

covering model years through 2035—in Western States Trucking

Ass’n v. EPA, No. 23-1143 (D.C. Cir.). That case is currently in

abeyance but will revive once common issues are resolved in an

earlier filed case.

22

JJ.)). Petitioners do not argue that dismissal was improper. Other challenges have been resolved on the

merits.11

And this Court’s ability to review petitioners’ statutory question here could be complicated for reasons

beyond the standing problem discussed above. Despite warning that this case could become “moot[]” if

remanded to the court of appeals, Diamond Pet. 36,

petitioners seem unconcerned about the possibility

that similar complications might occur during this

Court’s review. They merely assert that “this case

would fall within the capable-of-repetition exception

because of the order’s relatively short duration.” Id.

at 26. If correct, that undercuts petitioners’ main argument for bypassing the D.C. Circuit, since the exception would equally allow that court to address the

statutory issue on remand if this Court decided standing alone. But the applicability of that exception is

uncertain—in either court—because waivers do not

typically have such “short” durations: Had petitioners

challenged this waiver when it was issued in 2013,

there would have been more than enough time for judicial review.12

11 See, e.g., Am. Trucking Ass’ns, Inc. v. EPA, 600 F.3d 624 (D.C.

Cir. 2010); Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449

(D.C. Cir. 1998); Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075 (D.C.

Cir. 1996); Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095

(D.C. Cir. 1979); Ford Motor Co. v. EPA, 606 F.2d 1293 (D.C. Cir.

1979); see also Dalton Trucking, Inc. v. EPA, 846 F. App’x 442

(9th Cir. 2021). Other challenges did not result in judicial decisions because the parties withdrew them.

12 Petitioners suggest they were prevented from challenging the

2013 waiver because “the D.C. Circuit held that” a prior challenge

to California standards “was moot because California had

‘deemed’ compliance with federal standards to satisfy the State’s

(continued…)

23

Finally, an immediate decision from this Court on

the statutory question still would not settle the validity of the challenged reinstatement. EPA offered other

grounds for its reinstatement decision, including the

agency’s failure to sufficiently consider reliance interests when it revoked the waiver in 2019. See Ohio Pet.

App. 140a-151a; supra p. 4.

Those additional

grounds—which petitioners do not challenge here and

which would not ordinarily play a role in review of a

waiver—would need to be reviewed and rejected for

the reinstatement to be overturned. Petitioners appear to seek immediate review of the statutory question less to settle a concrete dispute about the validity

of the reinstatement than to obtain an advisory opinion as to different waivers in the future.

b. In any event, petitioners’ statutory arguments

(Diamond Pet. 27-34) are unpersuasive. Section 209(b)

directs EPA to grant a waiver “if the State determines

that the State standards will be, in the aggregate, at

least as protective of public health and welfare” as federal standards, 42 U.S.C. § 7543(b)(1), so long as that

determination is not “arbitrary and capricious,” id.

§ 7543(b)(1)(A), and there is no finding that the “State

does not need such State standards to meet compelling

and extraordinary conditions,” id. § 7543(b)(1)(B); see

also id. § 7543(b)(1)(C); supra p. 2. Petitioners only

take issue with EPA’s determination about that last

proviso. See Diamond Pet. 27.

standards.” Diamond Pet. 8. But the main focus of petitioners’

challenge—California’s zero-emission vehicle requirements—

never contained such a provision. C.A. J.A. 205-206 n.14. Petitioners fail to explain why they did not challenge that part of the

2013 waiver—or seek to overturn “the unfavorable D.C. Circuit

standing precedent” (Diamond Pet. 9) that they perceived as a

barrier to challenging other parts of that waiver.

24

As petitioners read it, the text demands a condition

that is “‘most unusual’ as compared to other States,”

Diamond Pet. 28, and a California emission standard

that “appreciably affect[s]” that condition, id. at 31.

They argue that climate change is not “particular to

California” and the standards here “will not materially reduce the impacts of climate change in California.” Id. at 27. That is wrong, see Ohio Pet. App. 219a227a; C.A. Cal. Br. 43-45; but even if it were correct, it

would not help petitioners.

EPA found that these standards were needed to

meet not just climate change problems, but also the

severe pollution California specifically experiences

from “criteria” pollutants such as particulate matter

and emissions that produce ground-level ozone and

smog. Ohio Pet. App. 207a-219a; see 42 U.S.C.

§ 7408(a). Petitioners do not deny that California has

“compelling and extraordinary” criteria pollutant

problems. And their assertion that these standards do

not address those pollutants (Diamond Pet. 30) is incorrect. These standards extended a program that began decades earlier as a criteria pollution reduction

program. See 58 Fed. Reg. 4166 (Jan. 13, 1993). California requested this waiver to reduce criteria pollutants as well as greenhouse gases. C.A. J.A. 151-152,

862, 876-877. Zero-emission vehicles produce zero

tailpipe criteria pollution—and both Congress and

EPA have recognized their importance in reducing criteria pollutants. 42 U.S.C. § 7586(f)(4); Ohio Pet. App.

147a-149a.13

13 Petitioners assert that EPA’s reasoning relating these standards to ozone turned only on lowering temperatures as a way to

reduce ozone formation. Diamond Pet. 30. That, too, is incorrect.

Ozone forms from nitrogen oxides. EPA made findings that the

(continued…)

25

Moreover, petitioners’ exclusive focus on the specific standards at issue here misunderstands Congress’s plan. See Diamond Pet. 32-33. Waiver

decisions under Section 209(b) turn on whether there

are “compelling and extraordinary conditions” for

which the State needs its emissions program as a

whole, not on the particular need for each individual

component of that program. That construction, long

embraced by EPA, makes sense. Section 209(b)(1) directs that, after a waiver determination, preemption

no longer “appl[ies] to [the] State,” 42 U.S.C.

§ 7543(b)(1)—not that it no longer applies to individual standards. When the statute asks whether the

State “need[s] such State standards to meet compelling and extraordinary conditions,” id. § 7543(b)(1)(B)

(emphasis added), the standards referred to are the

same ones that (a few lines above) are assessed “in the

aggregate” for protectiveness, id. § 7543(b)(1). That

textual link was no accident: Congress adopted (b)(1)’s

“in the aggregate” language and (b)(1)(B)’s “such State

standards” reference in the same amendment. Pub. L.

No. 95-95, § 207, 91 Stat. 685, 755 (1977). And California needs its regulatory program as a whole to address particular concerns stemming from both criteria

pollution and climate change. See Ohio Pet. App. 286a.

Petitioners disagree, arguing that the “in the aggregate” phrase in Section 209(b)(1) cannot apply to

subsection (b)(1)(B) because it does not apply to subsection (b)(1)(C). Diamond Pet. 32. But their premise

is mistaken. Subsection (b)(1)(C) makes EPA’s waiver

determination contingent on whether “such State

standards” are feasible “consistent with” 42 U.S.C.

standards would reduce ozone formation by reducing nitrogen oxide emissions. E.g., C.A. J.A. 805-807; Ohio Pet. App. 147a-148a

& n.165.

26

§ 7521(a). Congress knew about the increased difficulty of implementing multiple standards together.

See supra pp. 1-2. To protect automakers, as Congress

intended, feasibility is determined based on ability to

implement standards in the aggregate. Ohio Pet. App.

198a & n.265.

Petitioners next argue that evaluation of what California “need[s]” under Section 209(b)(1) must depend

on each individual standard, because “Congress already determined that California ‘need[s]’” its own

“program” by enacting “the preemption exception in

the first place.” Diamond Pet. 33. Not so. The program-based “need” requirement of Section 209(b)(1)(B)

forecloses new waivers if technological, regulatory, or

other changes render California’s separate program

unnecessary. That is hardly “meaningless” (Diamond

Pet. 33).

Finally, the “clear-statement rules” invoked by petitioners (Diamond Pet. 33-34) do not help them here.

The major-questions doctrine applies, in “extraordinary cases,” to require a federal agency to “point to

‘clear congressional authorization’ for the power it

claims.” West Virginia v. EPA, 597 U.S. 697, 723

(2022). A key justification for the doctrine is protecting state authority from federal overreach. Id. at 740

(Gorsuch, J., concurring). But EPA is not claiming

power here; it is getting out of the way of state authority. The “federalism canon” (Diamond Pet. 34) is similarly inapt. Its requirement for “unmistakabl[e]”

clarity applies when Congress “interfere[s]” with

States’ “substantial sovereign powers” under “our constitutional scheme.” Gregory v. Ashcroft, 501 U.S. 452,

461 (1991). But petitioners here are challenging an

exemption from preemption that preserves state power.

And “principles of constitutional avoidance” (Diamond

27

Pet. 33) are inapplicable because there is no serious

constitutional issue to avoid. See infra pp. 27-33.

3. The state petitioners ask this Court to consider

the constitutionality of Section 209(b). Ohio Pet. 9-36.

But their novel constitutional theory lacks merit, and

they identify no good reason for this Court to address

it.

a. Although the Constitution contains a “fundamental principle of equal sovereignty,” Shelby Cnty. v.

Holder, 570 U.S. 529, 544 (2013), the court of appeals

rightly rejected petitioners’ sweeping contention that

this principle forbids Congress from exercising its Article I powers to enact any statute that allows one

State “a power [Congress] denied” to other States.

Ohio Pet. 1-2; see Ohio Pet. App. 41a. That novel theory would upset Congress’s longstanding practices,

and nothing in constitutional text or history supports

it.

The Framers were explicit about requiring equal

treatment of States in some contexts: for example,

they required “uniform” laws concerning bankruptcy,

naturalization, and duties, U.S. Const. art. I, § 8, cl. 1,

4, and prohibited “preference” to the “Ports of one

State over those of another,” id., art. I, § 9, cl. 6; see

Ohio Pet. App. 49a. The lack of any constitutional text

imposing equal sovereignty limits on Congress’s exercise of its Commerce Clause power stands in contrast

to those explicit equality requirements. See id., art. I,

§ 8, cl. 3.

Petitioners contend that equality among States

was part of the “original plan of the Constitution” and

“the federal design.” Ohio Pet. 11-12. As the court of

appeals explained, however, the Framers’ focus was on

28

political equality—implemented by equal representation for each State in the Senate and equal representation for each voter in the House. Ohio Pet. App. 50a51a. Although petitioners (Ohio Pet. 15) cite the sovereign immunity reasoning of Franchise Tax Board of

California v. Hyatt, 587 U.S. 230 (2019), as support for

their atextual theory, the historical record there was

different. The Framers publicly promised that the

new Constitution would maintain States’ immunity

from suit. Id. at 242. Petitioners point to no foundingera authority indicating any similar intent as to the

question they raise here.

And Congress has enacted laws that treat certain

States differently since the founding, in diverse areas

such as acquiring or ceding federal land, see Alabama

v. Texas, 347 U.S. 272 (1954) (per curiam), or settling

state authority as to Indian lands, see Oklahoma v.

Castro-Huerta, 597 U.S. 629, 646 (2022). The nature

of the commerce power, in particular, presupposes

Congress’s authority to adjust preemption based on

particular States’ commercial conditions or regulatory

histories—as it has done repeatedly. See, e.g., 16

U.S.C. §§ 824k(k), 824p(k), 824q(h), 824t(f ) (Texas’s

unique authority over electric grid); 49 U.S.C.

§ 31113(a) (Hawaii’s unique authority over truckwidths). Congress followed a similar approach here,

authorizing California to craft alternative emission

standards in certain circumstances in recognition of

that State’s experience regulating air pollution and its

special pollution challenges. See supra p. 1. Indeed,

Congress’s approach increases options for all States,

by giving other States an option to adopt identical

standards where appropriate. See 42 U.S.C. § 7507;

supra pp. 2-3.

29

Petitioners’ arguments based on precedent (Ohio

Pet. 21-25) are unavailing. They first invoke the proposition that each State is “‘admitted into the union on

an equal footing with the original states.’” Id. at 21.

The leading case, Coyle v. Smith, 221 U.S. 559, 573

(1911), held that Congress could not prohibit Oklahoma from moving its seat of government as a condition of admission because Oklahoma was “admitted

with all of the powers of sovereignty and jurisdiction

[of ] the original states.” But Coyle’s holding about

that invalid “term of admission” preserved Congress’s

ability to enact “regulation[s] of commerce.” Id. at 574.

The Commerce Clause transferred that sovereign authority from the States to Congress. Ohio Pet. App.

47a.

Petitioners say their “most significant case” (Ohio

Pet. 22) is Escanaba & Lake Michigan Transportation

Co. v. Chicago, 107 U.S. 678 (1883), which held that

Illinois (admitted to the Union in 1818) “ha[d] the

same power to regulate navigable waters within its

borders that is possessed by other states of the Union,”

Econ. Light & Power Co. v. United States, 256 U.S.

113, 121 (1921). But Escanaba actually affirmed the

primacy of congressional power under the Commerce

Clause: Illinois’s authority could be exerted only “until [C]ongress interferes and supersedes it.” Escanaba, 107 U.S. at 683, 687; see Econ. Light, 256 U.S.

at 121.

Nor does Shelby County imply that Section 209(b)

is invalid. That case addressed the preclearance requirements of Section 5 of the Voting Rights Act, an

“extraordinary” provision prohibiting some States and

local governments from implementing any change in

voting procedures “until it was approved by federal au-

30

thorities.” 570 U.S. at 534, 537. The Court emphasized that the “Framers of the Constitution intended

the States to keep for themselves, as provided in the

Tenth Amendment, the power to regulate elections.”

Id. at 543 (internal quotation marks omitted). In light

of the “fundamental principle of equal sovereignty

among the States,” Congress could not single out nine

States for such an extraordinary impingement on selfgovernment based on “40-year-old data” that was belied by “today’s statistics.” Id. at 544, 556. But Shelby

County does not remotely suggest a complete bar on

differential treatment in the context of commercial

regulation. Even as to States’ power to regulate elections—a “‘sensitive area[] of state and local policymaking’”—Shelby County recognized that a statute’s

“‘disparate’” treatment could be justified if it were

“‘sufficiently related to the problem that it targets.’”

Id. at 545, 551.

b. Petitioners do not assert that their theory implicates any conflict among lower courts. In the rare

instances in which other parties have asserted similar

arguments, lower courts have rejected them.

The Third Circuit rejected a claim that the “equal

sovereignty of the states” was violated by a statute

that “singl[ed] out Nevada for preferential treatment”

by allowing it alone “to maintain broad state-sponsored sports gambling.” NCAA v. Governor of N.J.,

730 F.3d 208, 237 (3d Cir. 2013), cert. denied, 573 U.S.

931 (2014) (Nos. 13-967, 13-979 & 13-980). The court

saw “nothing in Shelby County to indicate that the

equal sovereignty principle is meant to apply with the

31

same force” in the “context of Commerce Clause legislation.” Id. at 239.14

The First Circuit reached a similar conclusion regarding a law requiring only some States to cover

young adults under their Medicaid programs. Mayhew v. Burwell, 772 F.3d 80, 83-84 (1st Cir. 2014). As

that court observed, the argument that the new Medicaid requirement “affect[ed] [Maine’s] ‘ability to pass

and implement laws, in the exercise of the fundamental police power over health and welfare,’” characterized the effect on sovereignty “at much too high a level

of generality.” Id. at 95. The same is true of petitioners’ characterization of the affected sovereign powers

here.

c. Finally, the circumstances here would complicate the Court’s resolution of this question.

To begin with, the state petitioners’ standing is not

clear. Ohio and its fellow petitioners object to Section

209(b) because it allows “only California” to regulate

vehicle emissions. Ohio Pet. 6. But none of the petitioner States has expressed any desire to impose its

own emissions regulations. See Acheson Hotels, LLC

v. Laufer, 601 U.S. 1, 12 (2023) (Thomas, J., concurring) (plaintiff lacked standing to complain of discrimination by hotel she “disclaimed any intent to visit”).

Although the court of appeals did not view that as a

jurisdictional problem, Ohio Pet. App. 38a-40a, this

Court would have to satisfy itself of petitioners’ standing.

14 This Court later granted certiorari in a different lawsuit about

the same statute, Murphy v. NCAA, 584 U.S. 453 (2018), but as

to anticommandeering, not equal sovereignty. See Pet. i, Murphy

v. NCAA, No. 16-476 (Oct. 7, 2016); Pet. i, N.J. Thoroughbred

Horsemen’s Ass’n, No. 16-477 (Sept. 29, 2016).

32

The petition also portends confusion as to the scope

of the issues that are properly before the Court. It

seeks to present (Ohio Pet. 31-32) not just a facial challenge to Section 209(b), but also a narrower, as-applied

claim “that the waiver here” is not “sufficiently related

to the problem that it targets.” Ohio Pet. App. 42a.

Petitioners do not contest that they never raised the

as-applied claim in their opening brief in the court of

appeals, which held that it was forfeited on that basis.

Ohio Pet. 33. They instead assert that they could advance it before this Court on the theory that it is a

“‘separate argument[]’ in support of ” a “consistent

claim.” Id. That is incorrect. The as-applied claim—

that it was unconstitutional to grant this waiver as to

greenhouse gases because that problem is not tailored

to California—is distinct from the original facial claim

about Congress’s inability to exempt California at all.

And petitioners’ failure to properly raise the narrower

claim below deprived this Court of the benefits of “a

reasoned opinion on [its] merits.” Bankers Life & Cas.

Co. v. Crenshaw, 486 U.S. 71, 80 (1988). Such an opinion would be particularly valuable if this Court were

ever to decide that type of claim, given the lengthy

agency record and Congress’s considered rationale for

tailoring Section 209 preemption as it did.

If there were a genuine need for an immediate answer to the question presented, perhaps this Court

might discount the features of this case that make it a

poor candidate for plenary review. But petitioners do

not contend that lower courts are confused or conflicted in ways only this Court can resolve. Nor do

they claim that their equal sovereignty question arises

with frequency—to the contrary, they identify just

four other cases over the last quarter century, and

acknowledge that “[a]nother case to test the equal-sovereignty doctrine may be a long time coming.” Ohio

33

Pet. 3; see id. at 26 (citing New York v. Yellen, 15 F.4th

569, 583-584 (2d Cir. 2021); Mayhew, 772 F.3d at 94;

NCAA, 730 F.3d at 1237-1238; Nevada v. Watkins, 914

F.2d 1545, 1554 (9th Cir. 1990)).

Petitioners instead argue that the Court should

grant their petition because it raises an “unanswered

question[] of constitutional structure,” Ohio Pet. 10;

because they “have long wanted [the] question answered,” id.; and because it would allow the Court to

“address the criticism[s]” of scholars about Shelby

County, id. at 3. In other words, they invite the Court

to grant certiorari in order to engage in a largely academic exercise concerning a form of regulatory authority that they do not seek.

*

*

*

The meritless nature of petitioners’ arguments,

and the lack of any conflict of authority, is reason

enough to deny certiorari. And the atypical nature of

the challenge—involving a nine-year-old waiver that

was temporarily revoked and recently reinstated—

makes this a particularly unsuitable vehicle for further review. Indeed, the 2022 reinstatement decision

rested in part on alternative grounds, not challenged

here, that would not be a consideration in a direct

challenge to the issuance of a waiver itself. See supra

pp. 4, 23. If EPA grants future waivers, petitioners

will presumably challenge them immediately, see 42

U.S.C. § 7607(b)(1), mindful of their responsibility to

demonstrate standing, and could present their statutory and constitutional theories without the unusual

complications inherent in this case.

34

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

TRACY WINSOR

Senior Assistant Attorney General

JOSHUA A. KLEIN

TERESA A. REED DIPPO

Deputy Solicitors General

MYUNG PARK

Supervising Deputy Attorney General

THEODORE MCCOMBS

CAITLAN MCLOON

ELAINE MECKENSTOCK

JONATHAN WIENER

Deputy Attorneys General

September 9, 2024

35

PHILIP J. WEISER

Attorney General

of Colorado

KEITH ELLISON

Attorney General

of Minnesota

WILLIAM TONG

Attorney General

of Connecticut

AARON D. FORD

Attorney General

of Nevada

KATHLEEN JENNINGS

Attorney General

of Delaware

MATTHEW J. PLATKIN

Attorney General

of New Jersey

BRIAN L. SCHWALB

Attorney General of the

District of Columbia

RAÚL TORREZ

Attorney General

of New Mexico

ANNE E. LOPEZ

Attorney General

of Hawai‘i

LETITIA JAMES

Attorney General

of New York

KWAME RAOUL

Attorney General

of Illinois

JOSHUA H. STEIN

Attorney General

of North Carolina

AARON M. FREY

Attorney General

of Maine

ELLEN F. ROSENBLUM

Attorney General

of Oregon

ANTHONY G. BROWN

Attorney General

of Maryland

MICHELLE HENRY

Attorney General

of Pennsylvania

ANDREA JOY CAMPBELL

Attorney General

of Massachusetts

PETER F. NERONHA

Attorney General

of Rhode Island

36

CHARITY R. CLARK

Attorney General

of Vermont

ROBERT FERGUSON

Attorney General

of Washington

HYDEE FELDSTEIN SOTO

City Attorney

of Los Angeles

By: Michael J. Bostrom

Senior Assistant

City Attorney

MURIEL GOODETRUFANT

Acting Corporation

Counsel of the City of

New York