Motion to hold the briefing schedule in abeyance — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.

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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________

MOTION OF THE FEDERAL RESPONDENTS

TO HOLD THE BRIEFING SCHEDULE IN ABEYANCE

_______________

Pursuant to Rule 21.1 of the Rules of this Court, the Acting

Solicitor General, on behalf of respondents United States Environmental Protection Agency (EPA) and James Payne in his official

capacity as the Acting Administrator of EPA, respectfully moves to

hold the briefing schedule in abeyance, without prejudice to any

party requesting to have the briefing schedule reinstated should

the matter not be resolved.*

The Court granted the petition for

*

Acting Administrator Payne is substituted as a party for

his predecessor in office. See Sup. Ct. R. 35.3.

2

a writ of certiorari on December 13, 2024.

Petitioners’ opening

brief is currently due on January 27, 2025; respondents’ briefs

are due on February 26, 2025; and the case has not yet been scheduled for argument.

Petitioners oppose the motion and plan to file

a response; the state respondents do not oppose the motion; and

the public interest respondents take no position on the motion.

1.

Under the Clean Air Act (Act), 42 U.S.C. 7401 et seq.,

each State generally has flexibility to determine how it will meet

air-quality goals.

Pet. App. 3a.

For “new motor vehicles,” how-

ever, the Act directs EPA to prescribe nationwide “standards applicable to the emission of any air pollutant

* * *

which in

[EPA’s] 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 gen-

erally preempts any State 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).

But Section 209(b) of the

Act, 42 U.S.C. 7543(b), requires EPA to “waive application of”

Section 209(a) in specified circumstances.

As relevant here, in 2019 EPA withdrew a waiver that it had

granted to California in 2013.

2019).

84 Fed. Reg. 51,310 (Sept. 27,

The 2013 waiver permitted California to implement certain

standards

addressing

zero-emission

vehicles

and

emission-vehicle standards for greenhouse gases.

the 2013 waiver in 2022.

to

set

low-

EPA reinstated

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

3

Petitioners sought judicial review of the 2022 reinstatement

decision in the D.C. Circuit, arguing that the waiver exceeded

EPA’s authority under Section 209(b).

See Pet. App. 2a-3a.

The

court dismissed petitioners’ claims for lack of Article III standing, concluding that petitioners had not “met their burden of

demonstrating that th[eir] injuries are redressable” by a judicial

decree holding the challenged EPA decision invalid.

Id. at 19a.

On July 2, 2024, petitioners filed a petition for a writ of

certiorari, which presents the question whether the court of appeals erred in holding that petitioners lack Article III standing.

The

certiorari

petition

also

presented

a

question

regarding

whether the 2022 reinstatement decision exceeded EPA’s authority

under Section 209(b).

On December 13, 2024, this Court granted

the petition limited to the first question presented.

2.

After the change in Administration, EPA’s Acting Admin-

istrator has determined that the agency should reassess the basis

for and soundness of the 2022 reinstatement decision.

Such a

reassessment could obviate the need for this Court to determine

whether petitioners had Article III standing to challenge that

decision.

Accordingly, the federal respondents respectfully re-

quest that this Court hold the briefing schedule in abeyance.

Petitioners’ opening brief is currently due on January 27, 2025;

respondents’ briefs are due on February 26, 2025; and the case has

not yet been scheduled for argument.

Given the Acting Adminis-

trator’s determination, it would be appropriate for the Court to

4

hold further proceedings in this case in abeyance to allow EPA to

reassess the basis for and soundness of the 2022 reinstatement

decision.

The Court has previously held briefing schedules in

abeyance in light of developments arising after the grant of certiorari in other cases.

See, e.g., Biden v. Sierra Club, No. 20-

138 (Feb. 3, 2021); Mayorkas v. Innovation Law Lab, No. 19-1212

(Feb. 3, 2021).

Respondents therefore request an order holding

the briefing schedule in abeyance, without prejudice to any party

requesting to have the briefing schedule reinstated should the

matter not be resolved.

3.

We have consulted with counsel for all parties.

tioners oppose the motion and plan to file a response.

respondents do not oppose the motion.

Peti-

The state

The public interest re-

spondents take no position on the motion.

If this motion is

granted, we will advise the Court of material developments that

would support further action by the Court.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

JANUARY 2025