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

Supreme Court briefSep 9, 2024

Ask Donna

What actually matters in this document.

Text

No. 24-7

In the Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

CHLOE H. KOLMAN

ERIC G. HOSTETLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Clean Air Act (CAA), 42 U.S.C. 7401 et seq., generally preempts state laws that regulate emissions from

new motor vehicles, but the CAA directs the Environmental Protection Agency (EPA) to waive preemption

for California laws under specified conditions. See 42

U.S.C. 7543(a) and (b). In 2013, EPA issued a waiver to

allow California to impose certain vehicle-emissions

standards. EPA partially withdrew that waiver in 2019

but reinstated it in 2022. Petitioners, who had not challenged the 2013 waiver, then challenged EPA’s 2022 reinstatement decision. The questions presented are as

follows:

1. Whether petitioners have established the redressability component of Article III standing.

2. Whether EPA correctly interpreted 42 U.S.C.

7543(b) when the agency granted California a waiver in

2013 and reinstated that waiver in 2022.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

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

Argument....................................................................................... 9

A. The court of appeals’ redressability holding does

not warrant this court’s review .................................... 10

B. This Court should not grant certiorari on a novel

statutory issue that no court has addressed ............... 19

Conclusion ................................................................................... 28

TABLE OF AUTHORITIES

Cases:

American Trucking Ass’ns v. EPA,

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

Biden v. Nebraska, 600 U.S. 477 (2023) ........................ 26, 27

Bond v. United States, 564 U.S. 211 (2011) ........................ 20

Clapper v. Amnesty Int’l USA, 586 U.S. 398 (2013) .......... 11

Department of Commerce v. New York,

588 U.S. 752 (2019)........................................................ 15, 16

Does 1-3 v. Mills, 142 S. Ct. 17 (2021) ................................. 20

Energy Future Coalition v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ............................................. 18

Engine Mfrs. Ass’n v. EPA,

88 F.3d 1075 (D.C. Cir. 1996) ........................................... 2, 3

General Land Office v. Biden,

71 F.4th 264 (5th Cir. 2023) ............................................... 17

Haaland v. Brackeen, 599 U.S. 255 (2023) ......................... 11

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).................................................. 11, 12, 17

(III)

IV

Cases—Continued:

Page

Motor & Equipment Mfrs. Ass’n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979), cert. denied,

446 U.S. 952 (1980)................................................................ 3

Motor & Equipment Mfrs. Ass’n v. Nichols,

142 F.3d 449 (D.C. Cir. 1998) .................................. 22, 24-26

Murthy v. Missouri, 144 S. Ct. 1972 (2024) .................. 10, 11

NRDC v. NHTSA, 894 F.3d 95 (2d Cir. 2018) .................... 16

Skyline Wesleyan Church v. California Dep’t of

Managed Health Care, 968 F.3d 738 (9th Cir. 2020) ...... 17

Slack Techs., LLC v. Pirani, 598 U.S. 759 (2023) .............. 24

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

523 U.S. 83 (1998) ............................................................... 20

Taylor v. Riojas, 592 U.S. 7 (2020) ...................................... 14

West Virginia v. EPA, 597 U.S. 697 (2022) ........................ 27

Wieland v. HHS, 793 F.3d 949 (8th Cir. 2015) ............. 17, 18

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 18

Zivotofsky v. Clinton, 566 U.S. 189 (2012) .......................... 20

Constitution, statutes, and regulations:

U.S. Const. Art. III ............................................... 7, 10, 11, 19

Air Quality Act of 1967, Pub. L. No. 90-148,

§ 208(b), 81 Stat. 501....................................................... 3, 25

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 1

42 U.S.C. 7401(b)(1) .......................................................... 1

42 U.S.C. 7507(1) ............................................................... 3

42 U.S.C. 7521(a)(1) ........................................................... 2

42 U.S.C. 7543(a) (§ 209(a)) .............................................. 2

42 U.S.C. 7543(b) (§ 209(b)) ....................... 2, 3, 6, 7, 20-27

42 U.S.C. 7543(b)(1) (§ 209(b)(1))......................... 2, 23, 24

42 U.S.C. 7543(b)(1)(A)-(C) .............................................. 2

V

Statutes and regulations—Continued:

Page

42 U.S.C. 7543(b)(1)(B) ................................................... 24

42 U.S.C. 7543(b)(1)(C) (§ 209(b)(1)(C)) .................. 24, 25

42 U.S.C. 7607(b)(1) .......................................................... 7

Clean Air Act Amendments of 1977,

Pub. L. No. 95-95, 91 Stat. 685:

§ 177(1), 91 Stat. 750 ......................................................... 3

§ 207, 91 Stat. 755 ........................................................ 3, 26

Energy Policy and Conservation Act,

49 U.S.C. 32919(a) ................................................................. 6

40 C.F.R.:

Section 85.2304(a) ............................................................ 22

Section 85.2305(a) ............................................................ 22

Section 86.1818-12 ........................................................... 11

Cal. Code Regs. tit. 13 (2024):

§ 1961.3(a)(1)(A)............................................................. 4, 5

§ 1962.2 ............................................................................... 5

§ 1962.4 ............................................................................... 5

§ 1963.1 ............................................................................. 23

Miscellaneous:

49 Fed. Reg. 18,887 (May 3, 1984) ....................................... 26

58 Fed. Reg. 4166 (Jan. 13, 1993) ........................................... 4

74 Fed. Reg. 32,744 (July 8, 2009) .......................................... 4

78 Fed. Reg. 2112 (Jan. 9, 2013) ............................. 4, 5, 12, 24

84 Fed. Reg. 51,310 (Sept. 27, 2019) .................................. 5, 6

86 Fed. Reg. 74,434 (Dec. 30, 2021) ..................................... 11

87 Fed. Reg. 14,332

(Mar. 14, 2022).............................4, 6, 7, 12, 13, 20-22, 24, 25

88 Fed. Reg. 20,688 (Apr. 6, 2023) ....................................... 23

89 Fed. Reg. 27,842 (Apr. 18, 2024) ..................................... 11

H.R. Rep. No. 728, 90th Cong., 1st Sess. (1967) ................... 3

In the Supreme Court of the United States

No. 24-7

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-49a)

is reported at 98 F.4th 288.

JURISDICTION

The judgment of the court of appeals was entered on

April 9, 2024. The petition for a writ of certiorari was

filed on July 2, 2004. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Clean Air Act (CAA or Act),

42 U.S.C. 7401 et seq., “to protect and enhance the quality of the Nation’s air resources so as to promote the

public health and welfare and the productive capacity of

its population,” 42 U.S.C. 7401(b)(1). Under the Act,

each State generally has flexibility to determine how it

(1)

2

will meet air-quality goals. Pet. App. 3a. For “new motor vehicles,” however, the Act directs the Environmental Protection Agency (EPA) to prescribe nationwide

“standards applicable to the emission of any air pollutant * * * which in [its] judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C.

7521(a)(1). Section 209(a) of the Act generally preempts

any “State or any political subdivision thereof ” from

“adopt[ing] or attempt[ing] to enforce any standard relating to the control of emissions from new motor vehicles.” 42 U.S.C. 7543(a).

In turn, Section 209(b) of the Act, 42 U.S.C. 7543(b),

creates an exception to that preemption rule. Section

209(b) generally requires EPA to “waive application of

[Section 209(a)] to any State which has adopted standards * * * for the control of emissions from new motor

vehicles or new motor vehicle engines 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.” 42 U.S.C. 7543(b)(1). Section 209(b) further

specifies, however, that “[n]o such waiver shall be

granted if the Administrator finds that”: “(A) the determination of the State is arbitrary and capricious, (B)

such State does not need such State standards to meet

compelling and extraordinary conditions, or (C) such

State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.” 42 U.S.C. 7543(b)(1)(A)-(C).

California is the only State that regulated vehicle

emissions before March 30, 1966, so it is the only State

that is eligible for a waiver under Section 209(b). Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1079 n.9 (D.C.

3

Cir. 1996). Congress made a waiver available to California because, at the time the CAA was enacted, the

State “was already the ‘lead[er] in the establishment of

standards for regulation of automotive pollutant emissions’ at a time when the federal government had yet to

promulgate any regulations of its own.” Id. at 1079 (citation omitted; brackets in original). Congress also recognized “the unique problems facing California as a result of its climate and topography.” H.R. Rep. No. 728,

90th Cong., 1st Sess. 22 (1967).

Under the original 1967 CAA provision, a waiver of

preemption was available only if California’s standards

were “more stringent than applicable Federal standards.” Air Quality Act of 1967, Pub. L. No. 90-148,

§ 208(b), 81 Stat. 501. In 1977, Congress amended Section 209(b) to “expand California’s flexibility to adopt a

complete program of motor vehicle emissions control.”

Motor & Equipment Mfrs. Ass’n v. EPA, 627 F.2d 1095,

1110-1111 (D.C. Cir. 1979), cert. denied, 446 U.S. 952

(1980); see Clean Air Act Amendments of 1977 (1977

amendments), Pub. L. No. 95-95, § 207, 91 Stat. 755.

The 1977 amendments added language (quoted above)

specifying that, to obtain a waiver, California need only

determine that its standards “will be, in the aggregate,

at least as protective” as federal standards. § 207, 91

Stat. 755. The 1977 amendments also allowed other

States to “adopt and enforce” vehicle-emissions standards that “are identical to the California standards for

which a waiver has been granted for such model year.”

42 U.S.C. 7507(1); see § 177(1), 91 Stat. 750.

Since the CAA’s enactment, EPA has granted 75

Section 209(b) waivers for California’s vehicle-emissions program. Pet. App. 9a. In 1993, EPA granted a

waiver for California’s “ ‘Zero Emission Vehicle’ pro-

4

duction requirement,” which required an annually increasing percentage of vehicles sold in California to produce zero on-road emissions. 58 Fed. Reg. 4166, 4166

(Jan. 13, 1993). And in 2009, EPA granted a waiver for

California’s first set of greenhouse-gas emission standards. 74 Fed. Reg. 32,744, 32,745-32,747 (July 8, 2009).

Despite its substantial regulatory efforts, California

“continue[s] to face significant pollution and climate

challenges.” Pet. App. 10a. California is home to seven

of the Nation’s ten worst areas for ozone pollution and

six of the Nation’s ten worst areas for small particulate

matter. See 87 Fed. Reg. 14,332 14,377 n.469 (Mar. 14,

2022). And the State “is particularly impacted by climate change,” including through “increasing risks from

record-setting fires, heat waves, storm surges, sea-level

rise, water supply shortages and extreme heat.” Id. at

14,365; see id. at 14,334 n.10.

2. This case concerns a set of emissions standards,

known as the Advanced Clean Car (ACC) program, that

California adopted in 2012. That program includes a

low-emission-vehicle program, which (as relevant here)

establishes “standards to regulate [greenhouse-gas]

emissions.” 78 Fed. Reg. 2112, 2114 (Jan. 9, 2013). It

also includes a zero-emission-vehicle program, which

requires a certain percentage of manufacturers’ fleets

to be zero-emission vehicles. See id. at 2114-2115. Under the ACC as originally constructed, both the lowemission-vehicle program and the zero-emission-vehicle

program increase in stringency through model-year

2025. See Cal. Code Regs. tit. 13, § 1961.3(a)(1)(A)

(2024); C.A. Admin. R. Doc. 7, at 22; C.A. Admin. R. Doc.

811, at 1. After model-year 2025, the programs were

designed to remain in effect, with their stringency held

constant at 2025 levels. See ibid.; see also 78 Fed. Reg.

5

at 2119 (describing the ACC’s zero-emission-vehicle requirements as extending through “2025 and beyond”).

In 2013, EPA found “that the entire ACC program

me[t] the criteria for a waiver of Clean Air Act preemption and thus * * * grant[ed] a waiver for [California’s]

ACC program.” 78 Fed. Reg. at 2113; see id. at 2112.

California amended its ACC zero-emission-vehicle

standards in 2022 so that they expire following modelyear 2025. See Cal. Code Regs. tit. 13, § 1962.2 (2024).

California intends to replace those standards as part of

a new program known as ACC II, which includes increasing zero-emission-vehicle requirements from modelyear 2026 through model-year 2035 and then holds the

2035 levels constant for subsequent years. See id.

§ 1962.4 (2024). California has sought a CAA waiver for

ACC II, but EPA has not yet acted on that request. In

contrast, California has not amended the ACC’s lowemission-vehicle standards for greenhouse-gas emissions; those standards will continue to hold greenhousegas emissions at the stringency level set for model-year

2025 in “subsequent” model years.

See id.

§ 1961.3(a)(1)(A) (2024).

In 2019, “after car manufacturers had adjusted their

fleets to comply with California’s Advanced Clean Car

Program,” Pet. App. 12a, EPA withdrew California’s

waiver for the portions of that program that addressed

zero-emission vehicles and set low-emission-vehicle

standards for greenhouse gases, 84 Fed. Reg. 51,310,

51,310 (Sept. 27, 2019). EPA articulated three bases for

the withdrawal. See id. at 51,328-51,341. First, EPA

believed that portions of the waiver conflicted with a

then-recent determination by the National Highway

Traffic Safety Administration (NHTSA) that state

greenhouse-gas regulations like California’s were

6

preempted by the Energy Policy and Conservation Act

(EPCA), 49 U.S.C. 32919(a). 84 Fed. Reg. at 51,33751,338. Second, EPA asserted that Section 209(b) requires examination of California’s emission standards in

isolation, rather than “California’s entire program in

the aggregate.” Id. at 51,341. Third, EPA determined

that California could not demonstrate that its low-emission-vehicle standards for greenhouse gases and its

zero-emission-vehicle regulations were needed to meet

compelling and extraordinary conditions because, in

EPA’s view, California could not show a “particularized

nexus” between greenhouse-gas emissions and California’s air-pollution problems. Ibid.

After EPA withdrew the 2013 waiver, automobile

manufacturers representing nearly 30% of U.S. vehicle

sales, including Honda, Ford, Volvo, BMW, and Volkswagen, entered into independent agreements with California under which the manufacturers would continue

to meet California’s low-emission-vehicle and zeroemission-vehicle standards. See 87 Fed. Reg. at 14,346

n.115. “Automakers were motivated to sign these

agreements by the investments they had already made

in updating their fleets and growing consumer demand

for electric vehicles.” Pet. App. 14a.

In 2022, EPA reinstated California’s 2013 waiver. 87

Fed. Reg. at 14,332. EPA identified three principal

grounds for its reinstatement decision. First, EPA concluded that it had made procedural errors in 2019 when

the agency reconsidered the 2013 waiver. Id. at 14,333.

Second, EPA determined that the 2019 withdrawal decision had rested on a faulty interpretation and application of Section 209(b). Ibid. Third, the agency found

that it had improperly considered NHTSA’s interpre-

7

tation of EPCA, which NHTSA had since withdrawn in

any event. Ibid.; see Pet. App. 14a.

3. Petitioners, a group of entities that produce or

sell liquid fuels and raw materials used to produce those

fuels, sought judicial review of EPA’s 2022 reinstatement decision in the D.C. Circuit. See Pet. App. 2a; 42

U.S.C. 7607(b)(1). 1 Petitioners argued that EPA’s reinstatement decision exceeded the agency’s authority under Section 209(b). Pet. App. 3a. Various States (including California) and localities, automakers, and environmental organizations intervened in support of EPA.

Id. at 15a & nn.4-6.

The court of appeals dismissed petitioners’ claims for

lack of Article III standing. Pet. App. 1a-49a. Petitioners asserted that the 2022 reinstatement decision “will

cause them economic injury.” Id. at 16a. The court concluded, however, that petitioners had not “met their

burden of demonstrating that those injuries are redressable” by a judicial decree holding the challenged

EPA decision invalid. Id. at 19a.

In the court of appeals, petitioners “argue[d] that, by

requiring vehicle manufacturers to sell vehicles that use

less or no liquid fuel, California’s [low-emission-vehicle]

and [zero-emission-vehicle] requirements depress the

demand for liquid fuels” that petitioners “produce and

sell.” Pet. App. 19a. “The difficulty for” petitioners, the

court observed, “is that their claimed injuries ‘hinge[]

on’ the actions of third parties—the automobile manufacturers who are subject to the waiver.” Id. at 22a

A group of 17 States also sought judicial review. See Pet. App.

2a & n.1. Those States have filed a separate petition for a writ of

certiorari seeking review of the D.C. Circuit’s decision in this case.

See Ohio v. EPA, No. 24-13 (filed July 5, 2024). The government is

filing a separate brief opposing that petition.

1

8

(citation omitted). The court explained that petitioners’

“injuries would be redressed only if automobile manufacturers responded to vacatur of the waiver by producing and selling fewer non-conventional vehicles or by altering the prices of their vehicles such that fewer nonconventional vehicles—and more conventional vehicles

—were sold.” Ibid.

The court of appeals also observed that “redressability is further complicated by the relatively short duration of the waiver that Petitioners challenge.” Pet. App.

22a. The court stated that petitioners had challenged

only EPA’s 2022 decision “to reinstate the waiver it had

previously granted California as to Model Years 2017

through 2025.” Ibid. So “to meet their burden of

demonstrating redressability,” the court concluded, petitioners would need to “demonstrate a ‘substantial

probability’ not only that automobile manufacturers are

likely to respond to a decision of this Court by changing

their fleets in a way that alleviates their injuries in some

way, but also that automobile manufacturers would do

so relatively quickly—by Model Year 2025.” Id. at 23a

(citation omitted).

The court of appeals determined that “[t]he record

evidence provides no basis” for finding redressability.

Pet. App. 23a. The court first noted that petitioners had

“fail[ed] to point to any evidence affirmatively demonstrating that vacatur of the waiver would be substantially likely to result in any change to automobile manufacturers’ vehicle fleets by Model Year 2025.” Ibid.

Indeed, the court found that “[t]he only evidence points

in the opposite direction, indicating that automobile

manufacturers need years of lead time to make changes

to their future model year fleets.” Ibid., see id. at 23a-

9

24a (citing rulemaking comments by various automakers).

The court of appeals further emphasized record evidence showing that “ ‘manufacturers are already selling

more qualifying vehicles in California than the State’s

standards require,’ ” which “suggest[s] that vacatur of

the zero-emission-vehicle mandate would not redress

Petitioners’ injuries.” Pet. App. 28a (citation omitted).

The court observed that several automobile manufacturers had filed a brief explaining “that ‘both internal

sustainability goals and external market forces’ are

prompting manufacturers to transition toward electric

vehicles, irrespective of California’s regulations.” Id. at

24a n.8 (citation omitted). The court thus perceived a

lack of evidence that “vacatur of the challenged waiver”

would “result in any change on the part of automobile

manufacturers.” Id. at 27a.

The court of appeals observed that, “[d]espite the

paucity of evidence in the record regarding the redressability of their injuries” and “the relatively short nature

of the waiver they challenge,” petitioners “seem to have

treated redressability as a foregone conclusion.” Pet.

App. 24a-25a. The court noted that petitioners had not

“attempt[ed] to explain in any detail how their injuries

are redressable, let alone to ‘cit[e] any record evidence’

or to file ‘additional affidavits or other evidence sufficient to support’ redressability.” Ibid. (citation omitted; second set of brackets in original). The court therefore had “no basis to conclude that Petitioners’ claims

are redressable—a necessary element of standing that

Petitioners bear the burden of establishing.” Id. at 29a.

ARGUMENT

Petitioners ask (Pet. 15-26) this Court to review the

court of appeals’ holding that, in light of “the record

10

evidence” in this case, petitioners have not shown that

a favorable judicial ruling would redress their injuries.

Pet. App. 29a. The court below applied established Article III principles to the record here and properly concluded that petitioners had not shown that their injuries

are redressable. That fact-bound conclusion does not

conflict with any decision of another court of appeals or

otherwise warrant this Court’s intervention.

Petitioners also ask (Pet. 26-37) this Court to grant

certiorari to consider the merits of their statutory argument, even though neither the court of appeals nor any

other court has addressed that argument. But multiple

threshold issues could thwart this Court’s review of that

argument. And in any event, this Court traditionally

acts as a Court of review, not of first view. Nor is there

any compelling need to review the statutory issue now,

particularly because that same issue is currently pending before the D.C. Circuit in a separate case. The petition should be denied.

A. The Court Of Appeals’ Redressability Holding Does Not

Warrant This Court’s Review

Applying settled standing principles to the record

evidence in this case, the court of appeals held that petitioners had failed to establish that their asserted injuries are redressable. The court’s conclusion was correct

and does not warrant this Court’s review.

1. a. “[I]t is a bedrock principle that a federal court

cannot redress ‘injury that results from the independent action of some third party not before the court.’ ”

Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024) (citation omitted).

“In keeping with this principle,”

the Court has “ ‘been reluctant to endorse standing theories that require guesswork as to how independent

decisionmakers will exercise their judgment.’ ” Ibid.

11

(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,

413 (2013)). The Court has recently and repeatedly rejected, on redressability grounds, claims of Article III

standing that depend on such guesswork. See, e.g.,

Murthy, 144 S. Ct. at 1995; Haaland v. Brackeen, 599

U.S. 255, 294 (2023); Lujan v. Defenders of Wildlife, 504

U.S. 555, 568-571 (1992).

Here, the court of appeals properly observed that petitioners’ asserted injuries “hinge on the response” of a

“third party to the government action,” Defenders of

Wildlife, 504 U.S. at 562—namely, “the automobile

manufacturers who are subject to [EPA’s] waiver.” Pet.

App. 22a. Yet because the 2013 waiver has now been in

effect for over a decade, automakers have made significant “investments” in “updating their fleets and growing consumer demand for electric vehicles.” Id. at 14a.

In addition, “ ‘both internal sustainability goals and external market forces’ are prompting [them] to transition toward electric vehicles, irrespective of California’s

regulations.” Id. at 24a n.8 (citation omitted). And EPA

has promulgated federal greenhouse-gas emissions

standards that outpace California’s comparable standards and govern model-years 2023 through 2032 (and

then subsequent years). See 86 Fed. Reg. 74,434 (Dec.

30, 2021); 89 Fed. Reg. 27,842 (Apr. 18, 2024); 40 C.F.R.

86.1818-12. As a result of these various factors, manufacturers “are already selling more qualifying vehicles

in California than the State’s standards require.” Pet.

App. 28a (citation omitted); see C.A. State Resp.-Intervenors’ Add. 98 (explaining that “multiple manufacturers have announced plans to sell substantially more

zero-emission vehicles in the future than [California’s]

standards * * * require”).

12

Despite that evidence of automakers’ independent

conduct, petitioners “treated redressability as a foregone conclusion.” Pet. App. 25a. They did not “attempt[] to explain in any detail how their injuries are

redressable, let alone to ‘cit[e] any record evidence’ or

to file ‘additional affidavits or other evidence sufficient

to support’ redressability.” Id. at 24a-25a (citation

omitted; second set of brackets in original). Petitioners

accordingly failed to meet their “burden * * * to adduce facts showing that” the third-party automakers

would act “in such manner as to * * * permit redressability of injury.” Defenders of Wildlife, 504 U.S. at 562.

The court of appeals also relied on the “short duration of the waiver that Petitioners challenge.” Pet. App.

22a. The court stated that the case “concern[s] only the

EPA’s decision, in March 2022, to reinstate the waiver

it had previously granted California as to Model Years

2017 through 2025.” Ibid. To support that proposition,

the court cited EPA’s 2022 reinstatement decision,

which states that “[a]s a result of this action, EPA’s

2013 waiver for the ACC program, specifically the

waiver for California’s [greenhouse-gas] emission standards and [zero-emission vehicles] sales mandate requirements for model years (MYs) 2017 through 2025,

comes back into force.” 87 Fed. Reg. at 14,333.

Contrary to the court of appeals’ suggestion, EPA’s

2013 waiver does not expire after model-year 2025. As

noted above, in 2013, EPA found “that the entire ACC

program me[t] the criteria for a waiver of Clean Air Act

preemption and thus * * * grant[ed] a waiver for [California’s] ACC program.” 78 Fed. Reg. at 2113. And

although the 2022 reinstatement decision referenced requirements applicable through model-year 2025, it also

noted that, “in 2013, EPA granted California’s waiver

13

request for the state’s [ACC] program,” and that the

“result” of the 2022 action was “the reinstatement of the

ACC program waiver.” 87 Fed. Reg. at 14,332, 14,367.

As originally constructed, the ACC program increased

in stringency only through model-year 2025 but still remained in effect thereafter. See pp. 4-5, supra. Even

now, following California’s enactment of ACC II, only

the ACC’s zero-emission-vehicle program expires after

model-year 2025, while the low-emission-vehicle standards for greenhouse-gas emissions remain in force

thereafter (at 2025 levels of stringency). See p. 5, supra. Thus, because EPA’s 2013 waiver applied to the

ACC, and the ACC does not fully terminate with modelyear 2025, the waiver likewise does not terminate with

model-year 2025.

In this Court, petitioners have not challenged the

court of appeals’ apparent understanding that the 2013

waiver sunsets after model-year 2025. To the contrary,

petitioners embrace that understanding (Pet. 26), arguing that the Court’s review of the second question presented is urgently necessary “[b]ecause California’s

waiver expires at the end of model year 2025.” See Pet.

4-5 (similar). Especially given petitioners’ acceptance

of the court of appeals’ apparent premise about the

waiver’s duration, there is no basis for the Court to

grant certiorari to review that premise.

More fundamentally, regardless of the 2013 waiver’s

continuing legal force, the waiver’s practical effects are

greatly diminished by intervening changes in the market. The court of appeals considered multiple factors,

and its ultimate conclusion on redressability was correct. As explained above, record evidence indicates

that, because of market forces and other independent

factors, “vacatur of the challenged waiver may not

14

result in any change on the part of automobile manufacturers.” Pet. App. 27a. And petitioners failed to present

their own evidence suggesting otherwise. On this record

and in light of petitioners’ presentation, the court

properly found that petitioners had “failed to meet their

burdens of demonstrating that their claims are redressable.” Id. at 30a.

b. Petitioners’ counterarguments lack merit. Petitioners contend (Pet. 18) that, if EPA’s waiver were vacated, “then the government will no longer be forcing

automakers to sell more electric vehicles,” so automakers will “make more vehicles that run on liquid fuel, or

they will adjust their prices.” According to petitioners

(ibid.), “[t]hat is Economics 101, not a proposition that

requires an affidavit for support.”

While there may be cases where commonsense economic principles can suffice to establish redressability,

the court of appeals correctly held that this is not one of

them, given the record evidence about the automobilemanufacturing market discussed above. To be sure, petitioners could have sought to offer their own evidence

showing that automakers would likely change course if

the challenged EPA waiver was vacated. But petitioners instead provided “conclusory” declarations simply

stating that petitioners’ injuries “ ‘would be substantially ameliorated if EPA’s decision were set aside.’ ”

Pet. App. 22a.

Petitioners briefly contest (Pet. 19-20) the court of

appeals’ reading of the declarations in the record. But

issues that “turn[] entirely on an interpretation of the

record in one particular case” are the “quintessential

example of the kind that [this Court] almost never review[s].” Taylor v. Riojas, 592 U.S. 7, 11 (2020) (per

curiam) (Alito, J., concurring in the judgment). In any

15

event, petitioners’ reading of the declarations is mistaken. The first declaration they cite asserts that California’s “original waiver request” in 2013 observed that

the State “aims to reduce emissions through ‘reductions

in fuel production.’ ” C.A. Pet. Standing Decl. of Jennifer M. Swenton at 5-6 (citation omitted). But that

2013 statement says nothing about whether—following

the years of “investments [automakers] had already

made in updating their fleets and growing consumer demand for electric vehicles,” Pet. App. 14a—automakers

would still alter their production lines to manufacture

more gasoline-fueled cars if EPA’s 2013 waiver were vacated more than a decade later. Petitioners also cite a

declaration from a California Air Resources Board official stating that, “all else being equal,” “it is reasonable

to expect that” without the waiver “there would be * * *

additional gasoline-fueled vehicles produced and sold

during these model years.” C.A. Decl. of Sylvia Vanderspek at 11. But that statement is not accompanied by

any supporting evidence or explanation, and it conflicts

with automakers’ own representations.

Petitioners further assert (Pet. 20) that “the court of

appeals appeared to require plaintiffs to obtain affidavits from the directly regulated parties—here, the automakers.” But while such affidavits would be one way

for petitioners to substantiate their theory of redressability, the court below did not suggest that it is the only

way. Instead, the court simply noted petitioners’ failure

to produce any form of evidence indicating that automakers would change their conduct in response to a

judicial ruling in petitioners’ favor.

Finally, petitioners’ reliance (Pet. 17, 20) on this

Court’s decision in Department of Commerce v. New

York, 588 U.S. 752 (2019), is misplaced. There, the

16

Court held that the plaintiff States had standing to challenge the government’s reinstatement of a citizenship

question on the census because that action would have

“result[ed] in noncitizen households responding to the

census at lower rates than other groups, which in turn

would cause them to be undercounted and lead” their

States to lose federal funds. Id. at 767. The Court held

that the States had “met their burden of showing,” including through historical evidence presented “at trial,”

that third-party noncitizens “will likely react in predictable ways to the citizenship question.” Id. at 768. Here,

by contrast, petitioners presented no record evidence

that third-party automakers would react to vacatur of

EPA’s waiver by altering their fleets or pricing. Pet.

App. 24a-25a. Department of Commerce therefore does

not support petitioners’ position.

2. a. Petitioners’ assertion of a circuit conflict (Pet.

21-24) is misconceived. None of the decisions they cite

involved record evidence affirmatively indicating that

independent third parties would likely not alter their

conduct if the plaintiffs succeeded on the merits. Petitioners identify no decision suggesting that “commonsense inferences” about third-party conduct (Pet. 24)

are sufficient even in the face of such evidence.

In NRDC v. NHTSA, 894 F.3d 95 (2018), the Second

Circuit held that certain environmental groups had

standing to challenge an agency’s indefinite delay of a

rule that “would have increased civil penalties for violations of ” fuel-economy standards. Id. at 100. In finding

redressability, the court emphasized that, “by automakers’ own admission, the increased penalty has the potential to affect [their] business decisions and compliance approaches.” Id. at 105. Here, by contrast, automakers’ public statements and actions suggest that

17

they would not change their business decisions and

compliance approaches even if EPA’s waiver were vacated.

In General Land Office v. Biden, 71 F.4th 264 (2023),

the Fifth Circuit held that States had standing to challenge an agency’s decision to divert funds away from the

construction of a border wall. Id. at 272-274. But in

concluding that the States’ asserted injuries were redressable, the court relied heavily on “the procedural

posture of a motion to dismiss,” which meant that the

States could rely solely on “allegations” and were “not

yet obliged to produce specific evidence.” Id. at 274. By

contrast, the procedural posture here—a petition for review of agency action on a full administrative record—

does require petitioners to produce evidence supporting

redressability. See Pet. App. 18a; cf. Defenders of Wildlife, 504 U.S. at 563 (explaining that “each element [of

standing] must be supported in the same way as any

other matter on which the plaintiff bears the burden of

proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation”).

In Wieland v. HHS, 793 F.3d 949 (8th Cir. 2015), and

Skyline Wesleyan Church v. California Department of

Managed Health Care, 968 F.3d 738 (9th Cir. 2020), the

courts of appeals considered challenges to laws that had

caused insurers to refuse to offer certain plans that

would have comported with the plaintiffs’ religious beliefs. See Skyline Wesleyan, 968 F.3d at 742; Wieland,

793 F.3d at 951-952. Both courts found that the plaintiffs’ conscience-based injuries were redressable, because “insurers had previously offered plans that were

acceptable to [the plaintiffs]” before the challenged

laws were enacted and would “predictabl[y]” do so again

if those laws were invalidated. Skyline Wesleyan, 968

18

F.3d at 750; see Wieland, 793 F.3d at 957. But neither

of those cases involved record evidence suggesting that

market forces would make it unlikely for insurers to

change their products.

b. Petitioners also assert (Pet. 23-24) an intra-circuit conflict with the D.C. Circuit’s decision in Energy

Future Coalition v. EPA, 793 F.3d 141 (2015). As an

initial matter, any resolution of an intra-circuit disagreement would be the task of the court of appeals, not

this Court. See Wisniewski v. United States, 353 U.S.

901, 901-902 (1957) (per curiam). And petitioners declined to seek rehearing en banc in this case.

In any event, Energy Future Coalition differs meaningfully from this case. There, biofuel producers sued

EPA, asserting that an EPA regulation prevented an

ethanol-based fuel from being “use[d] as a test fuel” by

vehicle manufacturers. Energy Future Coalition, 793

F.3d at 143. The court concluded that the biofuel producers had standing because “if EPA permitted vehicle

manufacturers to use [the ethanol-based fuel] as a test

fuel, there is substantial reason to think that at least

some vehicle manufacturers would use it.” Id. at 144.

In support of that conclusion, the court cited comments

from Ford Motor Company “saying that it ‘supports the

development and introduction’ ” of an ethanol-based

fuel and “that the ‘development of such a fuel would enable the first steps to the development of a new generation of highly efficient internal combustion engine vehicles.’ ” Ibid. (citation omitted). Here, the court of appeals cited automaker comments saying essentially the

opposite: That automakers would likely not produce

more gasoline-fueled vehicles, even if EPA’s 2013

waiver was vacated.

19

c. Finally, petitioners substantially overstate (Pet.

24-25) the importance of the first question presented.

The court of appeals did not suggest that plaintiffs can

never base standing on “common-sense inferences

about how third parties behave in response to legal barriers to certain behavior.” Pet. 24. Nor did it suggest

that parties who are not themselves the subject of a

challenged regulation “must secure the cooperation of a

directly regulated party to establish standing.” Pet. 25.

Instead, the court of appeals simply held that, where

redressability depends on the prospect that a favorable

judicial ruling will induce independent third parties to

change their conduct, and the only pertinent record evidence shows that those third parties likely will not do

so, the plaintiff has not satisfied Article III. The court’s

redressability holding turned substantially on distinctive characteristics of the automobile-manufacturing industry and the many steps automakers had already

taken over several years to comply with—and exceed—

California’s standards. See Pet. App. 23a-24a, 28a. The

consequences of that holding are unlikely to be widespread.

B. This Court Should Not Grant Certiorari On A Novel

Statutory Issue That No Court Has Addressed

Petitioners ask (Pet. 26-37) this Court to grant certiorari not only to review the redressability issue that the

court of appeals decided, but also to resolve the merits

of their statutory challenge—which neither the court

below nor any other court has addressed. The Court

should reject that request. This case is an extremely

poor vehicle for deciding petitioners’ statutory claim,

and that claim lacks merit in any event.

1. a. If this Court granted certiorari on the second

question presented, it could not decide that issue on the

20

merits unless it first reviewed and rejected the court of

appeals’ determination that petitioners lack Article III

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

523 U.S. 83, 94 (1998); pp. 11-16, supra. In addition,

EPA has raised another threshold argument that could

impede the Court’s review of petitioners’ statutory argument: namely, that EPA’s 2019 decision to withdraw

the 2013 waiver was procedurally invalid because it reopened a long-settled adjudication and relied on improper considerations. See EPA C.A. Br. 53-58; 87 Fed.

Reg. at 14,344-14,352. That argument is logically antecedent to the question whether the reinstatement decision properly applies Section 209(b).

Even if the Court ultimately concluded that neither

of those threshold obstacles bars its review of the second question presented, a grant of certiorari on that issue would be contrary to the Court’s usual practice.

This Court ordinarily does not decide merits questions

“in the first instance” where, as here, the court of appeals has resolved a case on threshold grounds. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (citation omitted). Instead, when the Court “reverse[s] on a threshold question, [it] typically remand[s] for resolution of

any claims the lower courts’ error prevented them from

addressing.” Ibid.; see, e.g., Bond v. United States, 564

U.S. 211, 214 (2011).

That approach would make particular sense here because the Court would otherwise be “without the benefit

of” any “lower court opinions to guide [its] analysis of

the merits.” Zivotofsky, 566 U.S. at 201. Indeed, no

court has ever passed on the statutory question raised

by petitioners. The fact that this Court would be “the

first to address the [second] question[] presented” thus

weighs against review. Does 1-3 v. Mills, 142 S. Ct. 17,

21

18 (2021) (Barrett, J., concurring in the denial of application for injunctive relief).

Finally, this Court’s resolution of the second question presented would not be outcome-determinative in

the circumstances of this case. Petitioners argue that

EPA must apply Section 209(b) by evaluating whether

each individual California emission-reduction standard

for which the State has sought a waiver is needed to address “California’s distinctive local pollution problems.”

Pet. 28; see Pet. 27-34. That argument lacks merit, as

explained below. But even if petitioners’ interpretation

of Section 209(b) were correct, EPA independently determined that California’s low-emission-vehicle and

zero-emission-vehicle standards qualified for waivers

under that interpretation. See 87 Fed. Reg. at 14,334

(“[E]ven if the focus is on [California’s] specific standards, when looking at the record before it, EPA erred

in [2019] in concluding that California does not have a

compelling need for the specific standards at issue.”).

In its 2022 decision to reinstate the 2013 waiver,

EPA found “that California is particularly impacted by

climate change, including increasing risks from recordsetting fires, heat waves, storm surges, sea-level rise,

water supply shortages and extreme heat.” 87 Fed.

Reg. at 14,363. And EPA determined that California

“needs” both the low-emission-vehicle and zero-emission-vehicle standards to address the “compelling and

extraordinary” “climate-change impacts” that it faces.

Ibid. In addition, EPA found that California faces “serious criteria air pollution problems” and that the zeroemission-vehicle standard directly reduces “criteria

pollutant concentrations in California” by increasing

the share of vehicles that produce no criteria pollutants

whatsoever. Id. at 14,363-14,364. Indeed, California’s

22

vehicle program has included a zero-emission-vehicle

standard since 1990 for precisely that reason. See id. at

14,363. Accordingly, EPA concluded that California’s

low-emission-vehicle and zero-emission-vehicle standards were “particularly relevant” to reducing “California’s air pollution problems.” Id. at 14,366.

b. Petitioners ask (Pet. 36) this Court to ignore all of

the foregoing jurisdictional and prudential obstacles because they contend that the second question presented

“has for too long evaded this Court’s review,” and that

“[t]he challenged waiver is in effect only through model

year 2025.” But if petitioners are correct that the challenged waiver meaningfully affects their operations

only through model-year 2025, then that only further

confirms that this Court’s intervention can do little to

benefit them. If this Court granted certiorari on both

questions presented and ultimately held that petitioners have standing, it likely would not issue a merits decision until spring or summer of 2025, when model-year

2026 cars will already be on the road. See 40 C.F.R.

85.2304(a) (establishing that the model year may begin

“on January 2 of the calendar year preceding the year

for which the model year is designated,” i.e., on January

2, 2025, for model year 2026); 40 C.F.R. 85.2305(a).

Nor is there any reason to think that the statutory

issue presented will necessarily evade judicial review.

Numerous Section 209(b) waivers have been reviewed

by courts on the merits. See, e.g., American Trucking

Ass’ns v. EPA, 600 F.3d 624, 627-629 (D.C. Cir. 2010);

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

462-464 (D.C. Cir. 1998). Indeed, the precise issue of

statutory interpretation that petitioners raise here is

currently pending before the D.C. Circuit in a case arising from EPA’s 2023 waiver for California’s standards

23

governing heavy-duty vehicles and engines. See Private

Pet. Br. 39-58, Western States Trucking Assoc., Inc. v.

EPA, No. 23-1143 (D.C. Cir. Nov. 3, 2023); 88 Fed. Reg.

20,688, 20,688 (Apr. 6, 2023). That waiver applies to California standards that govern through model-year 2035

and beyond, see Cal. Code Regs. tit. 13, § 1963.1 (2024),

so the challenge there will not be affected by any issues

concerning the duration of the waiver.2

Moreover, the alleged urgency here results in part

from petitioners’ own litigation decisions. Petitioners

did not challenge EPA’s 2013 waiver in 2013, when there

was ample time to obtain a judicial decision before

model-year 2025. Instead, they challenged only EPA’s

2022 reinstatement of the 2013 waiver, by which time

model-year 2025 was fast approaching. And once they

filed their challenge in the D.C. Circuit, they litigated

on a normal timeline, without seeking expedition. Petitioners also suggest (Pet. 35-36) that granting review

now is necessary because California has adopted new

standards applicable to passenger vehicles for future

model years. But if EPA grants California a waiver for

those new standards—which EPA has not yet done—

petitioners can challenge the waiver at that time.

2. a. In any event, petitioners’ statutory argument

lacks merit. Section 209(b) provides that EPA generally “shall” grant California a preemption waiver “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.” 42

U.S.C. 7543(b)(1). Section 209(b) further specifies,

The D.C. Circuit has held Western States Trucking in abeyance

pending the court’s resolution of Texas v. EPA, No. 22-1031 (argued

Sept. 14, 2023). See Western States Trucking, supra, No. 23-1143

(Dec. 21, 2023).

2

24

however, that “[n]o such waiver shall be granted if the

Administrator finds that,” inter alia, “such State does

not need such State standards to meet compelling and

extraordinary conditions.” 42 U.S.C. 7543(b)(1)(B).

In its 2022 reinstatement decision, EPA concluded

that California’s 2012 waiver request had been properly

granted in 2013 pursuant to Section 209(b)’s criteria.

See 87 Fed. Reg. at 14,358-14,361; see also 78 Fed. Reg.

at 2113. In reaching that conclusion, EPA affirmed that

the 2013 waiver grant had correctly considered California’s standards in the aggregate, as EPA has consistently done in waiver decisions across the last five decades. See 87 Fed. Reg. at 14,353-14,354 (discussing this

traditional practice); cf. Motor & Equipment Mfrs.

Ass’n, 142 F.3d at 464 (agreeing with EPA that, for purposes of Section 209(b)(1)(C), “California’s consistency

is to be evaluated ‘in the aggregate,’ rather than on a

one-to-one basis”) (citation omitted).

Section 209(b)(1) requires California to base its protectiveness determination on its “standards * * * in

the aggregate.” 42 U.S.C. 7543(b)(1). Subparagraph

(b)(1)(B)’s directive that EPA must consider whether

“such State standards” are needed “to meet compelling

and extraordinary conditions,” 42 U.S.C. 7543(b)(1)(B)

(emphasis added), therefore is likewise best understood

to refer to the standards in the aggregate. See Slack

Techs., LLC v. Pirani, 598 U.S. 759, 766 (2023) (“The

word ‘such’ usually refers to something that has already

been ‘described’ or that is ‘implied or intelligible from

the context or circumstances.’ ”) (citation omitted). Because the state standards just mentioned in paragraph

(b)(1) have an aggregate character, “such State standards” in subparagraph (b)(1)(B) have the same aggregate character. Although petitioners contend that

25

“Section 209(b)’s ‘in the aggregate’ language does not

carry down to the rest of 209(b),” Pet. 32 (emphasis

omitted), petitioners disregard the word “such,” whose

usual purpose is to make clear that such a connection

exists.

Petitioners further contend (Pet. 32) that EPA’s aggregate approach to subparagraph (b)(1)(B) is inconsistent with its approach to subparagraph (b)(1)(C).

But petitioners’ premise is wrong: As EPA explained,

it interprets subparagraph (b)(1)(C) to also “refer to

standards in the aggregate.” 87 Fed. Reg. at 14,361; see

id. at 14,361 n.266 (explaining that EPA has evaluated

California’s “suite of standards” and that “EPA’s assessment under 209(b)(1)(C) is not in practice a standard-by-standard review”); Motor & Equip. Mfrs. Ass’n,

142 F.3d at 464.

Petitioners also advance a highly restrictive reading

of other terms in subparagraph (b)(1)(B)—like “ ‘extraordinary’ ” and “need”—contending that the provision only permits standards that are “essential” to

meeting “California’s distinctive local pollution problems.” Pet. 28, 31. But that argument presupposes that

California’s standards must be evaluated individually

rather than in the aggregate. Petitioners appear to

acknowledge (Pet. 32) that, if “EPA’s whole-program

approach” is valid, then subparagraph (b)(1)(B) is satisfied even under their reading of “ ‘extraordinary’ ” and

“ ‘need[].’ ”

b. Section 209(b)’s history reinforces EPA’s aggregate approach. As noted above, see p. 3, supra, the 1967

version of the CAA required California’s standards to

be “more stringent than applicable Federal standards.”

§ 208(b), 81 Stat. 501. As amended in 1977, however, the

statute requires California to determine only that its

26

standards “in the aggregate” will be at least as protective as federal standards. § 207, 91 Stat. 755. That 1977

amendment ensured that California had flexibility to

adopt an appropriate program of “emission control

standards,” “even if those standards were in some respects less stringent than comparable federal ones.”

Motor & Equip. Mfrs. Ass’n, 142 F.3d at 464 (citation

omitted). As EPA recognized 40 years ago, Congress

would “not have given this flexibility to California and

simultaneously assigned to the state the seemingly impossible task of establishing that ‘extraordinary and

compelling conditions’ exist for each less stringent

standard.” 49 Fed. Reg. 18,887, 18,890 n.24 (May 3,

1984).

c. Petitioners’ reliance (Pet. 33) on various “clearstatement rules” is misplaced. As the government’s

brief in opposition in Ohio v. EPA, petition for cert.

pending, 24-13 (filed July 5, 2024), explains, Section

209(b) raises no serious issue under the equal-sovereignty principle. And because the petitioners in Ohio v.

EPA argue that Congress is categorically foreclosed

from subjecting different States’ laws to different

preemption standards, their approach would render

Section 209(b) unconstitutional under either a wholeprogram or a standard-by-standard interpretation. The

constitutional-avoidance canon therefore has no evident

role to play here.

The major-questions doctrine is likewise inapplicable. Contrary to petitioners’ implication (Pet. 34), economic consequences standing alone have never been

enough to trigger the major-questions doctrine. After

all, the doctrine is a tool for discerning “the text’s most

natural interpretation” by situating the text in “context.” Biden v. Nebraska, 600 U.S. 477, 508 (2023)

27

(Barrett, J., concurring). So in deciding whether the

doctrine applies, this Court has considered not just the

“economic and political significance” of the asserted authority, but also other surrounding circumstances, such

as the “history and the breadth of th[at] authority.”

West Virginia v. EPA, 597 U.S. 697, 721 (2022) (citation

omitted); see, e.g., Nebraska, 600 U.S. at 501 (same).

Here, neither the history nor the breadth of the provision at issue “provide[s] a ‘reason to hesitate.’ ” West

Virginia, 597 U.S. at 721 (citation omitted). Indeed, unlike the federal statutory provisions at issue in West

Virginia and Nebraska, the waiver provision does not

“confer[] authority upon an administrative agency” to

make “ ‘major policy decisions.’ ” Id. at 721, 723 (citation

omitted). Rather, it requires EPA to adjudicate waiver

requests and confines EPA’s discretion to determining

whether specified criteria are met. And while the

major-questions doctrine is designed in part to “preserve room for lawmaking” by state and local governments, id. at 739 (Gorsuch, J., concurring), restricting

the availability of Section 209(b) waivers (as petitioners

request) would curb state power and expand federal

power.

Petitioners’ invocation (Pet. 34) of the federalism

canon is even further afield. Petitioners contend (Pet.

34) that, “under EPA’s view, California alone among the

States can regulate the nation’s automobile market in

the service of addressing climate change and forcing a

transition to electric vehicles.” Petitioners’ proposed

construction of Section 209(b), however, would not expand state regulatory authority in this sphere. To the

contrary, adopting that interpretation would make it

more difficult for California to obtain preemption waivers, and it would correspondingly reduce other States’

28

practical ability to choose between California and federal vehicle-emission standards. Petitioners’ invocation

of the federalism canon as a ground for constraining

state regulatory authority would thus flip the canon on

its head.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

CHLOE H. KOLMAN

ERIC G. HOSTETLER

Attorneys

SEPTEMBER 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

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