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

Supreme Court briefJan 27, 2025

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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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONERS

ERIC D. MCARTHUR

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY PLLC

800 Connecticut Ave NW

Suite 900

Washington, DC 20006

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

JULIA J. MROZ

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

LESLIE B. ARFFA

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

(Additional counsel on signature page)

QUESTION PRESENTED

Whether a party may establish the redressability

component of Article III standing by relying on the

coercive and predictable effects of regulation on third

parties.

(I)

CORPORATE DISCLOSURE STATEMENT

Petitioner Diamond Alternative Energy, LLC, is a

Delaware limited liability company that manufactures

biomass-derived liquid fuels. It is a wholly owned direct subsidiary of Valero Energy Corporation, a Delaware corporation whose common stock is publicly

traded on the New York Stock Exchange under the

ticker symbol VLO.

Petitioner American Fuel & Petrochemical Manufacturers is a national trade association that represents

American refining and petrochemical companies. The

Association has no parent corporation, and no publicly

held corporation has a 10% or greater ownership in it.

Petitioner Clean Fuels Development Coalition is a

business league organization established in a manner

consistent with Section 501(c)(6) of the Internal Revenue Code. Established in 1988, the Coalition works

with auto, agriculture, and biofuel interests in support

of a broad range of energy and environmental programs. It has no parent companies, and no publicly

held company has a 10% or greater ownership interest

in the Coalition.

Petitioner Domestic Energy Producers Alliance is a

non-profit, nonstock corporation organized under the

laws of the State of Oklahoma. The Alliance has no parent corporation, and no publicly held company owns

10% or more of its stock.

Petitioner Energy Marketers of America is a federation of 47 state and regional trade associations representing energy marketers throughout the United

States. It is incorporated under the laws of the Commonwealth of Virginia, has no parent corporation, and

(II)

III

no publicly held corporation has a 10% or greater ownership in it.

Petitioner ICM, Inc. is a Kansas corporation that is

a global leader in developing biorefining capabilities,

especially for the production of ethanol. It is a wholly

owned subsidiary of ICM Holdings, Inc., and no publicly held company has a 10% or greater ownership interest in ICM Holdings, Inc.

Petitioner Illinois Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner Iowa Soybean Association is a non-profit

trade association. Its members are soybean farmers

and supporters of the agriculture and soybean industries. It operates for the purpose of promoting the general commercial, legislative, and other common interests of its members. The Iowa Soybean Association

does not have a parent company, it has no privately or

publicly held ownership interests, and no publicly held

company has an ownership interest in it.

Petitioner Kansas Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner Michigan Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner the Minnesota Soybean Growers Association is a non-profit trade association. Its members are

soybean farmers, their supporters, and members of

IV

soybean industries. It operates for the purpose of promoting the general commercial, legislative, and other

common interests of its members. The Minnesota Soybean Growers Association is a not-for-profit corporation that is not a subsidiary of any corporation and that

does not have any stock which can be owned by a publicly held corporation.

Petitioner Missouri Corn Growers Association is an

agricultural organization. It has no parent companies,

and no publicly held company has a 10% or greater

ownership interest in it.

Petitioner National Association of Convenience

Stores is an international trade association that represents both the convenience and fuel retailing industries

with more than 1,300 retail and 1,600 supplier company

members. The United States convenience industry has

more than 152,000 stores across the country, employs

2.74 million people, and had more than $859 billion in

sales in 2023, of which more than $532 billion were fuel

sales. The Association has no parent corporation, and

no publicly held corporation has a 10% or greater ownership interest in it.

Petitioner the South Dakota Soybean Association is

a non-profit trade association. Its members are soybean farmers, their supporters, and members of soybean industries. It operates for the purpose of promoting the general commercial, legislative, and other common interests of its members. The South Dakota Soybean Association is not a subsidiary of any corporation,

and does not have any stock which can be owned by a

publicly held corporation.

Petitioner Valero Renewable Fuels Company, LLC,

a Texas limited liability company that manufactures

V

ethanol, is a wholly owned direct subsidiary of Valero

Energy Corporation.

TABLE OF CONTENTS

Page

Introduction .......................................................................... 1

Opinion below ....................................................................... 5

Jurisdiction ........................................................................... 5

Statutory provisions involved ............................................. 5

Statement .............................................................................. 5

A. Statutory background ............................................... 5

B. Regulatory background ............................................ 7

C. Proceedings below ................................................... 12

D. Subsequent developments ...................................... 15

Summary of argument ...................................................... 16

Argument ............................................................................ 19

I. Petitioners suffered an injury-in-fact caused by

EPA’s action ................................................................. 21

A. Petitioners suffered classic pocketbook

injuries ...................................................................... 21

B. Petitioners’ injuries are fairly traceable to

EPA’s waiver .......................................................... 22

II. Petitioners’ injuries are redressable ....................... 24

A. Petitioners have established redressability

because they are challenging a regulatory

hurdle to the use of their products ..................... 25

1. Removing the coercive effect of

government standards provides redress ...... 25

2. California’s standards impose a new

regulatory hurdle to the use of petitioners’

products .............................................................. 28

(VI)

VII

B. Petitioners have established redressability

because they can rely on the predictable effect

of emission standards ............................................ 29

1. Litigants can rely on common sense and

basic economics to demonstrate

redressability ..................................................... 30

2. Automakers would predictably adjust their

fleets if EPA’s waiver were vacated .............. 34

C. The court of appeals’ redressability analysis is

wrong ........................................................................ 35

1. The decision below contradicts this Court’s

precedents and common sense ....................... 36

2. The decision below conflates redressability

with mootness .................................................... 39

3. The decision below creates bad policy .......... 41

D. At the very least, petitioners have established

redressability because the challenged waiver

continues in perpetuity ......................................... 45

Conclusion ........................................................................... 48

Appendix — Statutory provisions .................................... 1a

TABLE OF AUTHORITIES

Page(s)

Cases:

Alaska v. Department of Transp.,

868 F.2d 441 (D.C. Cir. 1989) ................................. 44

Allen v. Wright,

468 U.S. 737 (1984).................................................. 27

Association of Data Processing Serv.

Orgs., Inc. v. Camp,

397 U.S. 150 (1970).................................................. 34

Barlow v. Collins,

397 U.S. 159 (1970).................................................. 34

Bennett v. Spear,

520 U.S. 154 (1997)............................ 4, 25, 26, 28, 36

California v. Texas,

593 U.S. 659 (2021)............................................ 27, 32

CBS v. United States,

316 U.S. 407 (1942).................................................. 26

Chamber of Commerce v. EPA,

642 F.3d 192 (D.C. Cir. 2011) ................................... 8

Corner Post, Inc. v. Board of Governors

of the Fed. Rsrv. Sys.,

603 U.S. 799 (2024)............................................ 20, 42

Davis v. Federal Election Comm’n,

554 U.S. 724 (2008).................................................. 30

Department of Commerce v. New York,

588 U.S. 752 (2019)............................ 4, 24, 30, 31, 34

Energy Future Coal. v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ........... 4, 13, 28, 29, 36

FDA v. Alliance for Hippocratic Med.,

602 U.S. 367 (2024).......... 4, 20, 23, 31, 32, 33, 34, 44

(VIII)

IX

Cases—Continued:

Federal Election Comm’n v. Wisconsin Right To

Life, Inc.,

551 U.S. 449 (2007).................................................. 41

General Motors Corp. v. Tracy,

519 U.S. 278 (1997)............................................ 34, 42

Genesis HealthCare Corp. v. Symczyk,

569 U.S. 66 (2013).................................................... 40

Haaland v. Brackeen,

599 U.S. 255 (2023)............................................ 27, 33

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014)............................................ 23, 27

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................ 19, 20, 30, 39

Maine v. Taylor,

477 U.S. 131 (1986).................................................. 44

Massachusetts v. EPA,

549 U.S. 497 (2007)...................................... 24, 31, 34

Mendoza v. Perez,

754 F.3d 1002 (D.C. Cir. 2014) ............................... 42

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010).................................................. 42

Motor Equip. Mfrs. Ass’n v. EPA,

627 F.2d 1095 (D.C. Cir. 1979) ................................. 6

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm

Mut. Auto. Ins. Co.,

463 U.S. 29 (1983).................................................... 42

Murthy v. Missouri,

603 U.S. 43 (2024).................................................... 33

X

Cases—Continued:

National Credit Union Admin. v. First Nat’l

Bank & Trust Co.,

522 U.S. 479 (1998).................................................. 34

Northeastern Fla. Chapter of Associated Gen.

Conts. of Am. v. City of Jacksonville,

508 U.S. 656 (1993).................................................. 28

Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary,

268 U.S. 510 (1925).................................................. 26

Skyline Wesleyan Church v. California Dep’t of

Managed Health Care,

968 F.3d 738 (9th Cir. 2020) ................................... 31

Sprint Commc’ns Co. v. APCC Servs., Inc.,

554 U.S. 269 (2008).................................................. 31

Summers v. Earth Island Inst.,

555 U.S. 488 (2009).................................................. 34

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014).............................................22-23

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

590 U.S. 538 (2020).................................................... 1

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021)............................................ 20, 22

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023).................................................. 22

United States v. Texas,

599 U.S. 670 (2023)............................................ 22, 33

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014).................................................... 5

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021).................................................. 24

XI

Cases—Continued:

West Virginia v. EPA,

597 U.S. 697 (2022)............................................ 40, 44

Statutes:

28 U.S.C. § 1254(1) .......................................................... 5

42 U.S.C.

§ 7408(a) ..................................................................... 7

§ 7409.......................................................................... 7

§ 7507.......................................................................... 7

§ 7521.......................................................................... 5

§ 7543.......................................................................... 5

§ 7543(a) ................................................................. 2, 6

§ 7543(b) ............................................................. 2, 6, 7

Regulations:

38 Fed. Reg. 10,317 (Apr. 26, 1973) .............................. 7

49 Fed. Reg. 18,887 (May 3, 1984) ................................ 6

59 Fed. Reg. 48,625 (Sept. 22, 1994) ............................. 7

73 Fed. Reg. 12,156 (Mar. 6, 2008) ................................ 8

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

78 Fed. Reg. 2,112 (Jan. 9, 2013) ................. 9, 10, 21, 34

84 Fed. Reg. 51,310 (Sept. 27, 2019) ..................... 10, 11

86 Fed. Reg. 7,037 (Jan. 20, 2021) ............................... 11

86 Fed. Reg. 43,583 (Aug. 5, 2021) ................................ 2

87 Fed. Reg. 14,332 (Mar. 14, 2022) .............................. 5

89 Fed. Reg. 82,553 (Oct. 11, 2024) ....................... 15, 47

90 Fed. Reg. 642 (Jan. 6, 2025) .................................... 16

Cal. Code Regs. tit. 13, § 1961.3 .............................. 9, 16

Cal. Code Regs. tit. 13, § 1962.2(b) ................... 9, 10, 23

XII

Regulations—Continued:

Cal. Code Regs. tit. 13, § 1962.2(d) ............................. 10

Other authorities:

113 Cong. Rec. 30,948 (Nov. 2, 1967) ............................ 6

CARB, Framework Agreements on Clean Cars

(Aug. 17, 2020),

https://perma.cc/ZM4Z-GDEK ............................. 43

CARB, States that Have Adopted California’s

Vehicle Regulations (June 2024),

https://perma.cc/M6LC-SVR8............................... 11

David Gohlke et al., Assessment of Light-Duty

Plug-in Electric Vehicles in the United States,

2010–2021 (Nov. 1, 2022),

https://perma.cc/Y6VE-2QB5 ................................ 23

EPA, Decision Document: California State Motor

Vehicle and Engine Pollution Control

Standards; Advanced Clean Cars II; Waiver of

Preemption (Dec. 2024),

https://perma.cc/2YSG-VVXE......................... 16, 46

EPA, News Release: What They Are Saying: EPA

Restoration of California Waiver Will Support

State Climate Action, Improve Air Quality,

and Advance our Electric Vehicle Future

(Mar. 11, 2022),

https://perma.cc/896Q-N2X5 ........................ 4, 9, 11

Governor Gavin Newsom, Governor Newsom

Statement on Biden Administration’s

Restoration of California’s Clean Car Waiver

(Mar. 9, 2022),

https://perma.cc/T92E-2XM8 .................................. 3

H.R. Rep. No. 90-728 (1967) .......................................... 6

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

BRIEF FOR PETITIONERS

INTRODUCTION

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

590 U.S. 538, 547 (2020). Article III standing should

not be complicated here. The question is whether a

party has standing to challenge a government action

that works by depressing the market for that party’s

products. To ask the question is to answer it. Private

schools have standing to challenge a law prohibiting

parents from sending their children to private school.

Publishers have standing to challenge a law banning

bookstores from selling their books. And here, producers and sellers of liquid fuels have standing to challenge a rule requiring automakers to make cars that

use less liquid fuel, or none at all.

(1)

2

This lawsuit arises from the Biden Administration’s

efforts to force the electrification of the Nation’s vehicle fleet. In 2021, President Biden announced his “goal

that 50 percent of all new passenger cars and light

trucks sold in 2030 be zero-emission vehicles,” as part

of his administration’s efforts to “address the climate

crisis.” 86 Fed. Reg. 43,583, 43,583 (Aug. 5, 2021). At

the time, electric vehicles made up around 4% of the

new automobile market. So to fast-forward to the result the President wanted—fewer combustion-engine

vehicles on the road and less liquid fuel consumed—the

federal government pursued a multi-pronged strategy

of federal and state regulation.

On the state front, EPA turned to Section 209 of

the Clean Air Act. That unique provision broadly

preempts States from adopting their own motor-vehicle

emission standards. 42 U.S.C. § 7543(a). But it permits California—and California alone—to obtain a narrow waiver from federal preemption. Id. § 7543(b). To

receive a special preemption waiver, California must

demonstrate that it “need[s]” its own emission standards “to meet compelling and extraordinary conditions.” Id. § 7543(b)(1)(B).

For decades, EPA granted Section 209(b) preemption waivers to California to address the State’s local

pollution problems, such as smog. In recent years,

however, different administrations have flip-flopped on

whether Section 209(b) permits EPA to grant California a waiver to tackle global climate change. Most relevant here is EPA’s 2022 flip, in which it reinstated a

once-granted, once-revoked waiver for California’s

“Advanced Clean Cars” program. That program includes a set of stringent greenhouse-gas emission

standards, as well as a mandate requiring automakers

to meet a 22% zero-emission-vehicle target by model

3

year 2025. Pet. App. 55a-57a. California’s governor

explained that the program works “to end our reliance

on fossil fuels.” 1

Petitioners immediately challenged EPA’s reinstated waiver. Petitioners are entities (and associations of entities) that produce or sell liquid fuels and

the raw materials used to make them. They challenged

EPA’s approval of California’s standards as inconsistent with the major-questions doctrine and the plain

text of Section 209(b), which allows for a special California exemption only for problems localized to and

solvable in California—not for global issues like climate change. To establish their standing, petitioners

submitted 14 declarations explaining that California’s

standards target their products and will result in lower

sales.

The court of appeals held that petitioners lacked Article III standing. The court theorized that vacating

EPA’s waiver, and thus eliminating California’s coercive regulations, might not have any effect on car manufacturers’ decisions about the composition of their

fleets, given market demand. As a result, the court

concluded that petitioners had not shown that a favorable decision would redress their economic injuries.

Pet. App. 29a.

That cannot be right. The entire point of California’s Advanced Clean Cars program is to reduce demand for petitioners’ products: the regulations are designed to compel automakers to change the kind of vehicles they produce so as to decrease the amount of liquid fuel burned by drivers. No one disputes that is the

aim of California’s standards. It is why EPA praised

1

Governor Gavin Newsom, Governor Newsom Statement on

Biden Administration’s Restoration of California’s Clean Car

Waiver (Mar. 9, 2022), https://perma.cc/T92E-2XM8.

4

its waiver as a “critical step to confront the climate crisis.”2 Eliminating the waiver and wiping California’s

Advanced Clean Cars program off the books would

thus be likely to remedy at least one dollar of petitioners’ economic injuries. Redressability here should not

be more complicated than that.

There are three doctrinal paths to that commonsense conclusion. First, and most simply, redressability is satisfied because a favorable decision would

“remove a regulatory hurdle” to the sale of petitioners’

products. Energy Future Coal. v. EPA, 793 F.3d 141,

144 (D.C. Cir. 2015) (Kavanaugh, J.); see Bennett

v. Spear, 520 U.S. 154, 169 (1997). Second, even absent

that categorical rule, challengers to a government action may establish redressability by relying on the action’s “predictable effect” on third parties. Department of Commerce v. New York, 588 U.S. 752, 768

(2019). It is entirely predictable that California’s regulation of automakers would “cause downstream or upstream economic injuries to others in the chain”—

especially petitioners. FDA v. Alliance for Hippocratic Med., 602 U.S. 367, 384 (2024). Third, at a minimum petitioners’ injuries are redressable because

EPA has now clarified that its waiver has no expiration

date. Not even the court below doubted that setting

aside a perpetual waiver would likely affect automaker

behavior at some point in the future.

Article III’s redressability requirement exists to

align injuries and remedies, so that litigants do not sue

the wrong parties and courts do not issue overly broad

2

EPA, News Release: What They Are Saying: EPA Restoration of California Waiver Will Support State Climate Action, Improve Air Quality, and Advance our Electric Vehicle Future (Mar.

11, 2022), https://perma.cc/896Q-N2X5 (EPA News Release).

5

relief or advisory opinions. The redressability requirement does not exist to block the intended targets of

government regulation from challenging the very regulations that threaten their existence, so that courts

can avoid deciding controversial or difficult questions.

This Court should reverse.

OPINION BELOW

The opinion of the court of appeals (Pet. App.

1a-49a) is reported at 98 F.4th 288. The EPA order

under review (Pet. App. 50a-285a) is available at

87 Fed. Reg. 14,332.

JURISDICTION

The court of appeals entered judgment on April 9,

2024. The petition for a writ of certiorari was filed on

July 2, 2024, and granted on December 13, 2024. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in an

appendix to this brief.

STATEMENT

A. Statutory Background

“The Clean Air Act regulates pollution-generating

emissions from both stationary sources, such as factories and powerplants, and moving sources, such as

cars, trucks, and aircraft.” Utility Air Regul. Grp.

v. EPA, 573 U.S. 302, 308 (2014). This case concerns

Title II of the Act, which authorizes EPA to regulate

emissions from new motor vehicles. 42 U.S.C. §§ 7521,

7543.

To effectuate a (mostly) uniform federal emissions

regime, Section 209(a) of Title II broadly prohibits

States from “adopt[ing] or attempt[ing] to enforce any

6

standard relating to the control of emissions from new

motor vehicles.” 42 U.S.C. § 7543(a). This preemption

provision prevents “an anarchic patchwork of federal

and state regulatory programs, a prospect which

threatened to create nightmares for the manufacturers.” Motor Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095,

1109 (D.C. Cir. 1979).

Congress created one exception to Section 209(a)’s

broad preemption of state emission standards: Section

209(b), which authorizes EPA to “waive” preemption

for certain standards adopted by California. 42 U.S.C.

§ 7543(b). 3 Congress granted California this special

status because of the State’s “unique problems” with

smog and other local issues caused by so-called “criteria” pollutants like particulate matter. H.R. Rep. No.

90-728, at 22 (1967). In particular, California’s atypical

“geography and prevailing wind patterns,” together

with its unusually large number of vehicles, made smog

a more persistent problem there than elsewhere.

49 Fed. Reg. 18,887, 18,890 (May 3, 1984) (citing

113 Cong. Rec. 30,948 (Nov. 2, 1967)).

Congress limited California’s ability to separately

regulate emissions in several ways. The onus is first

on California, which must “determine[] 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). After the State

makes that determination and files an application,

EPA must deny a waiver if it finds that (1) California’s

3

Section 209(b) does not name California. It instead makes a

preemption waiver possible for “any State” that had adopted certain

standards “prior to March 30, 1966.” 42 U.S.C. § 7543(b)(1). But as

Congress was aware, California was the only State that met this criterion and “is thus the only state eligible for a waiver.” Motor Equip.

Mfrs. Ass’n, 627 F.2d at 1100 n.1.

7

protectiveness determination is “arbitrary and capricious,” id. § 7543(b)(1)(A); (2) California “does not need

such State standards to meet compelling and extraordinary conditions,” id. § 7543(b)(1)(B); or (3) the proposed state standards are inconsistent with federal

emission standards, id. § 7543(b)(1)(C).

In 1977, ten years after setting up this preemption

framework, Congress amended the Clean Air Act to allow other States to follow California. Any State may

now “adopt and enforce” California standards “for

which a waiver has been granted,” so long as the adopting State has an approved plan to attain the federal airquality standards for criteria pollutants. 42 U.S.C.

§§ 7507, 7408(a), 7409. The upshot of this unusual

preemption system is that EPA sets nationwide emission standards; California may in limited circumstances set more stringent ones for itself; and other

States may either apply EPA’s standards or adopt California’s, but may not set their own.

B. Regulatory Background

1. For decades, Section 209(b) worked as Congress

had envisioned. EPA granted California waivers for

the State to set emission standards designed to combat

local air-quality problems like smog. See, e.g., 38 Fed.

Reg. 10,317, 10,318 (Apr. 26, 1973); 59 Fed. Reg. 48,625,

48,626 (Sept. 22, 1994). In recent years, however, California has sought to transform its unique preemption

exception into a tool for targeting global climate

change. It has done so through aggressive regulations

that limit vehicle greenhouse-gas emissions and force

electrification of the State’s (and consequently the Nation’s) vehicle fleet.

California’s efforts initially stalled. In 2008, under

President George W. Bush, EPA denied California’s

first application for a waiver for climate-change-

8

focused regulations. California sought to impose

standards limiting greenhouse-gas emissions from new

motor vehicles in the State. 73 Fed. Reg. 12,156,

12,156-12,157 (Mar. 6, 2008). EPA rejected California’s

application, explaining that Section 209(b)’s preemption waiver permitted California to enact standards to

address only “local and regional” pollution where the

“causal factors are local to California”—which obviously did not include global climate change. Id. at

12,163.

The day after President Obama took office, California sought reconsideration of EPA’s denial of its waiver

application. EPA granted reconsideration, reversed itself, and issued the waiver. 74 Fed. Reg. 32,744, 32,783

(July 8, 2009). EPA “reject[ed]” its prior conclusion

that Section 209(b) did not authorize California to

“promulgate state standards designed to address

global climate change problems” and approved California’s first set of greenhouse-gas emission standards.

Id. at 32,746. In assessing the “protectiveness” of California’s standards, EPA relied on California’s finding

that the standards “will result in a reduction in upstream emissions (emission due to the production and

transportation of the fuel used by the vehicle) of greenhouse gas, criteria and toxic pollutants due to reduced

fuel usage.” Id. at 32,750 n.36 (emphasis added) (citation omitted).

A number of affected car dealers challenged EPA’s

waiver decision. Before the D.C. Circuit could rule,

EPA “promulgated national greenhouse gas standards” for model years 2012 through 2016, “and California amended its regulations to deem compliance with

those national standards as compliance with its own.”

Chamber of Commerce v. EPA, 642 F.3d 192, 206 (D.C.

Cir. 2011). Pointing to those two developments, the

9

D.C. Circuit held that the challenge to EPA’s Section

209(b) waiver was moot. Ibid.

2. This case concerns California’s next greenhousegas waiver request. In 2012, California applied for a

new waiver to allow it to impose its “Advanced Clean

Cars” program, which includes stricter standards

aimed at further curbing greenhouse-gas emissions

from vehicles. The proposed standards govern all new

passenger cars, light-duty trucks, and medium-duty

passenger vehicles sold in California for model year

2015 through at least model year 2025. California

praised its Advanced Clean Cars standards as “some of

the best tools we have” “to tackle the climate crisis” by

“reduc[ing] emissions” and “driv[ing] technological innovation.” EPA News Release.

Two components of the Advanced Clean Cars program are especially relevant here. First, the program

includes greenhouse-gas emission standards that limit

carbon-dioxide emissions across fleets of vehicles.

Manufacturers meet those limits by producing more

electric vehicles or by implementing technologies that

reduce fuel consumption in combustion-engine vehicles, such as “electric drive technologies” and “engine

efficiency improvements.” 78 Fed. Reg. 2,112, 2,1362,137 (Jan. 9, 2013); see Cal. Code Regs. tit. 13, § 1961.3.

Second, the program includes a “zero-emission vehicle”

mandate, which requires each car manufacturer to produce and deliver for sale in California an increasing

percentage of battery-electric or fuel-cell vehicles out

of its overall fleet (or purchase regulatory “credits” instead). Cal. Code Regs. tit. 13, § 1962.2(b). This mandate culminates in a requirement that 22% of a manufacturer’s passenger vehicles produced for model year

2025, accounting for credits, must be zero-emission

10

vehicles—up from 4.5% in model year 2018. 4 Id.

§ 1962.2(b)(1)(A). California explained in its waiver application that the zero-emission-vehicle mandate “can

dramatically reduce petroleum consumption . . . compared to conventional technologies.” J.A. 28 (citation

omitted).

In 2013, EPA granted the waiver, allowing California “to enforce its [Advanced Clean Cars] emission

regulations.” 78 Fed. Reg. at 2,145. EPA concluded

that California’s standards met Section 209(b)’s

requirements—including that they were “needed to meet

compelling and extraordinary conditions”—because

the threat of global climate change was itself “extraordinary.” Id. at 2,129. Notably, EPA credited California’s finding that the cost of its regulations would be

“more than offset by consumer fuel savings over the

life of the vehicles.” Id. at 2,138.

3. Under the first Trump Administration, EPA reverted to its original approach to Section 209(b). In a

2019 joint rulemaking with NHTSA, EPA rescinded the

2013 preemption waiver for California’s greenhouse-gas

standards and zero-emission-vehicle mandate, again

reasoning that global climate change is not the kind of

“peculiar,” California-specific condition covered by

Section 209(b). 84 Fed. Reg. 51,310, 51,328, 51,342

(Sept. 27, 2019). EPA also found that California did not

“need” its standards to “meet” climate-change conditions because California’s standards would likely result

4

California’s regulations express this mandate as a “credit percentage requirement.” Cal. Code Regs. tit. 13, § 1962.2(b)(1). Because electric vehicles with longer ranges can generate more than

one credit, the exact percentage of electric vehicles can vary from

manufacturer to manufacturer. See id. § 1962.2(d)(5); 78 Fed. Reg.

at 2,119.

11

in “no change in temperatures or physical impacts resulting from anthropogenic climate change in California.” Id. at 51,341.

4. On his first day in office, President Biden signed

Executive Order 13,990, directing EPA to “consider

suspending, revising, or rescinding” the 2019 withdrawal of California’s 2013 waiver. 86 Fed. Reg. 7,037,

7,037 (Jan. 20, 2021). EPA dutifully reinstated California’s waiver, allowing the Advanced Clean Cars program to come back into effect. Pet. App. 57a.

In reinstating the waiver, EPA flipped back to its

2013 interpretation of Section 209(b). Pet. App. 155a.

Under that interpretation, California can obtain a

waiver so long as it “needs its program as a whole to

meet compelling and extraordinary conditions”—even

if it does not actually need the specific standards at issue. C.A. EPA Br. 84 (emphasis added); see Pet. App.

158a. In other words, California can tack on any emission standards it likes to its exempt emissions “program,” so long as the State’s local criteria-pollutant

problems “persist.” C.A. EPA Br. 66. Applying that

permissive reading of the statute, EPA concluded that

the waiver was justified primarily because California

needs its separate vehicle-emission program, as a

whole, to address its ongoing problems with criteria

pollutants. Pet. App. 155a-162a, 186a-188a.

EPA embraced the significance of its action, heralding the waiver as a “critical step to confront the climate

crisis.” EPA News Release. To date, 17 States and the

District of Columbia have adopted California’s

greenhouse-gas emission standards, its zero-emissionvehicle mandate, or both. California Air Resources

Board (CARB), States that Have Adopted California’s

Vehicle Regulations (June 2024), https://perma.cc/

12

M6LC-SVR8. Together with California, those jurisdictions account for more than 40% of the Nation’s new

vehicle market. Pet. App. 179a.

C. Proceedings Below

1. Petitioners are entities (and trade associations

whose members include entities) that produce or sell

liquid fuels—gasoline, diesel, biodiesel, renewable diesel, and ethanol—and the raw materials used to make

them. They promptly challenged EPA’s waiver reinstatement in the D.C. Circuit in May 2022, within 60

days of the agency action. Pet. App. 15a.

Along with their opening brief in the court of appeals, petitioners filed 14 standing declarations that

explained how reinstating California’s standards would

depress demand for liquid fuel, injuring them financially in a variety of ways. J.A. 120-184. Fuel producers explained how reducing the demand for their products in California would lead to an unavoidable loss in

business. J.A. 133-136. For example, petitioner Diamond Alternative Energy explained that it sells renewable diesel, a liquid fuel that can be used interchangeably with petroleum-derived diesel; that California “accounts for almost all of the renewable diesel consumed

in the United States”; and that the standards would diminish that demand. J.A. 135.

Other petitioners similarly established the negative

impact of California’s standards on their bottom lines.

An association of convenience stores explained that

California’s standards would mean its members’ “fueling stations sell less fuel” and their convenience stores

lose revenue because fewer customers “come through

[their] stores.” J.A. 140. And associations of corn

growers noted that California’s standards would drive

down demand for ethanol (which is blended into gasoline), in turn “decreasing demand for the corn” grown

13

by their members to produce ethanol. J.A. 130, 154,

158, 167.

EPA did not contest petitioners’ Article III standing below. But California and other state and local government intervenors did. J.A. 185-187. They argued

that petitioners had not “established any probability

that manufacturers would change course if EPA’s

[waiver] decision were vacated” because automakers

were planning to increase electric-vehicle production

for independent reasons. J.A. 187. Their own intervention motion, however, attached declarations asserting that “additional gasoline-fueled vehicles would be

sold during these model years” if EPA’s waiver were

overturned. J.A. 115.

In reply, petitioners explained that they had standing because vacating the waiver would remove a “direct

regulatory impediment” to their products’ use.

J.A. 210 (quoting Energy Future Coal., 793 F.3d at

144). Petitioners also pointed out that they were entitled to rely on the “reasonably predictable” conduct of

car manufacturers. Ibid. Petitioners noted that California itself had predicted automakers would produce

more “zero-emission vehicles” in response to its standards. Ibid. (quoting C.A. J.A. 237). And there was ample record evidence that not all manufacturers had “irrevocably committed” to electrification. Ibid. (citing

C.A. J.A. 477).

At oral argument in September 2023, counsel for the

state and local government intervenors made arguments sounding in mootness, not standing. In response

to questioning from the panel, California contended

that automakers could no longer change their production and sales plans for vehicles through model year

2025—the year in which the court apparently assumed

the waiver would end. See C.A. Oral Arg. 1:10:27-

14

1:10:31 (asserting that petitioners “need evidence that

manufacturers are going to change their product lines

and sell different vehicles in model year 2025”) (emphasis added). In reaction to that shifting theory of

justiciability, petitioners moved to file a supplemental

brief and declarations explaining why their petitions

were not moot. Petitioners also explained that the California standards covered by EPA’s waiver purported

to extend beyond model year 2025. C.A. Pet. Supp. Br.

5-6; see J.A. 50. EPA remained conspicuously silent

about petitioners’ standing and the temporal scope of

the waiver.

2. The court of appeals held that petitioners lack

Article III standing to challenge EPA’s waiver. Pet.

App. 19a. Although the court declined to “definitively

decide” whether petitioners had established injury and

causation, it did not question either showing. Id. at

21a.

Instead, the court of appeals concluded that petitioners had failed to show that their injuries would be

redressed if EPA’s decision were set aside. Pet. App.

19a. The court faulted petitioners for “fail[ing] to point

to any evidence affirmatively demonstrating that vacatur of the waiver would be substantially likely to”

prompt automakers to produce fewer electric vehicles

or alter their prices so that more liquid-fuel-powered

vehicles would be sold. Id. at 23a. It reasoned that

“unsupported assumptions regarding the future actions of third-party market participants are insufficient to establish Article III standing.” Id. at 29a. The

court also thought that the redressability inquiry was

“complicated by the relatively short duration of the

waiver,” id. at 22a, though it disclaimed any finding

that the case had been “mooted by the passage of

15

time,” id. at 25a. By hinging its decision on redressability, the court effectively held that even if the waiver

had been vacated at the moment EPA reinstated it in

2022, automakers might not have changed any production plans or prices before the end of model year 2025.

Id. at 22a-24a. The waiver was pointless the instant it

was reinstated.

The court of appeals declined to consider petitioners’ supplemental brief and declarations. Pet. App.

30a. The court reasoned that there was no “good

cause” to supplement the record. Id. at 31a.

D. Subsequent Developments

1. Petitioners sought review in this Court. In response, EPA explained that while the court of appeals

had based its redressability holding on the “relatively

short duration of the waiver,” Pet. App. 22a, in EPA’s

view the waiver does not actually sunset. EPA Br. in

Opp. 12-13. According to EPA, California’s greenhousegas standards continue to “remain in force” after model

year 2025, and “the waiver likewise does not terminate

with model-year 2025.” Id. at 13.

Shortly thereafter, EPA took the same position in a

different regulatory action. In proposing to approve

California’s request to include the Advanced Clean

Cars greenhouse-gas emission standards in the State’s

updated state implementation plan, EPA credited California’s July 2021 projections that those standards will

reduce fuel consumption, and thus reduce nitrogenoxide and particulate-matter emissions, through at

least 2037. 89 Fed. Reg. 82,553, 82,557, 82,558 (Oct. 11,

2024); see C.A. Reply 4 (citing California’s projections);

J.A. 93-94.

2. On December 17, 2024, EPA granted two new

Section 209(b) preemption waivers for California, including for the “Advanced Clean Cars II” program.

16

See 90 Fed. Reg. 642, 642 (Jan. 6, 2025). That program

“will require all new passenger cars and light-duty

trucks delivered for sale in California to be zeroemission” by 2035. EPA, Decision Document: California State Motor Vehicle and Engine Pollution Control

Standards; Advanced Clean Cars II; Waiver of

Preemption 73 n.188 (Dec. 2024), https://perma.cc

/2YSG-VVXE (ACC II Decision Document). Starting

with model year 2026, Advanced Clean Cars II thus replaces the zero-emission-vehicle standards challenged

here, which apply through model year 2025. 5

Advanced Clean Cars II does not, however, amend

the challenged greenhouse-gas emission standards.

See EPA Br. in Opp. 5; ACC II Decision Document 40

n.96. Those standards will remain at the model-year

2025 level of stringency for “subsequent” model years

and will “continue to be covered” by the Advanced

Clean Cars I waiver “reinstated in 2022.” Cal. Code

Regs. tit. 13, § 1961.3(a)(1)(A); see ACC II Decision

Document 40 n.96.

SUMMARY OF ARGUMENT

Petitioners produce and sell liquid fuels and their

raw materials. They have Article III standing to challenge an EPA waiver allowing California to enforce

vehicle-emission standards designed to reduce the consumption of liquid fuel. The court of appeals was wrong

to conclude otherwise.

I. Although the court of appeals did not consider

the first two prongs of Article III’s standing requirements, petitioners easily established that they have

At least some of petitioners plan to challenge EPA’s recent

decision to grant that waiver, and one challenge has already been

filed. American Free Enter. Chamber of Com. v. EPA, No. 25-106

(9th Cir.).

5

17

suffered a concrete injury-in-fact fairly traceable to

EPA’s waiver.

A. EPA’s preemption waiver for California’s Advanced Clean Cars program hits petitioners with a

classic pocketbook injury. Petitioners produce liquid

fuel and its component parts, so any reduction in demand for their products brings down their bottom

lines. Petitioners attested to their injuries in their

many standing declarations submitted to the court of

appeals, in which they explained the details of their

businesses and how reduced demand for liquid fuels

lowers their revenues.

B. EPA’s waiver causes petitioners’ injuries. The

waiver allows California to enforce its zero-emissionvehicle mandate and its greenhouse-gas emission

standards—both of which mandate the production of

vehicles that use less or no liquid fuel. California’s

standards push the car market beyond what consumers

would ordinarily demand and automakers would ordinarily produce and sell; that is the point of the standards. There is thus a clear causal connection between

California’s market intervention and petitioners’

market-based injuries.

II. Petitioners’ injuries are redressable for three

reasons.

A. Most simply, a decision vacating EPA’s waiver

would remove a regulatory impediment to the use of

petitioners’ products. As this Court has found in a variety of circumstances, the removal of the coercive effect of government action on third parties alone suffices to establish redressability. Challengers do not

need to supply additional record evidence of third parties’ likely reactions. That is because such challengers

(or their products) are being denied an opportunity to

18

compete in the marketplace, which vacating the government action will redress. Redressability, after all,

focuses on the match between the judicial relief requested and the injury suffered—and when challengers seek to vacate a rule targeting their products, the

match is perfect.

B. Even if this Court declines to adopt that categorical rule, petitioners can at least establish redressability by relying on the predictable effects of the challenged government action on third parties. This Court

has time and again distinguished between speculative

and predictable third-party responses to a judicial decision. When a third-party response is speculative, record evidence may be required to establish redressability. But when a third-party response is predictable, no

more is needed than a dose of common sense.

It is not just predictable but obvious that allowing

California to limit vehicles’ emissions will result in less

fuel consumption. California’s standards require that

automakers produce and sell more fuel-efficient cars

and fewer cars that run on liquid fuel. If EPA’s waiver

is set aside and California’s standards are preempted,

at least one automaker will choose to sell more vehicles

with lower fuel efficiency or more combustion-engine

vehicles. It is difficult to imagine that the parties and

their many amici would have litigated this case for

nearly three years and counting if that were not true.

C. The court of appeals rejected these two straightforward theories of redressability. Instead, it imposed

extraordinary burdens on entities indirectly affected

by agency action, effectively requiring evidence from

the directly regulated entities themselves. The court

also raised timing concerns that conflated redressability and mootness, with significant consequences. Its

misplaced redressability label flipped the burden of

19

proof from the government to petitioners, while leaving

petitioners without recourse to established mootness

exceptions.

If left uncorrected, the decision below would have

practical repercussions as serious as its doctrinal errors. A heightened redressability requirement would

lock the courthouse doors to numerous traditional challengers to agency action, so long as the targets of regulation have different interests than directly regulated

parties (as is often the case). It would also encourage

agencies to intentionally act on shorter time horizons

to shield their actions from review, and it would cut off

review of the most politically sensitive actions.

D. At a minimum, petitioners’ injuries are redressable even under the court of appeals’ mistaken reasoning, because EPA has now conceded that its waiver for

certain California standards does not sunset. The

court of appeals was concerned about what it viewed as

the relatively short four-year duration of the waiver.

But as EPA has since explained to this Court, its

waiver does not expire unless California changes its

standards, and California has never amended its

greenhouse-gas standards.

Put differently, the

waiver’s effects do not expire after model year 2025.

There thus can be no plausible dispute that vacating

the waiver will have some effect on automaker behavior

at some point in the future. Standards that regulate

market allocation forever are all but guaranteed to

have at least one dollar of economic impact.

ARGUMENT

To demonstrate Article III standing, a plaintiff

must show that he suffered a concrete injury, that the

injury is fairly traceable to the challenged action, and

that the “injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

20

(1992) (citation omitted). Taken collectively, these requirements ensure that federal courts decide only “the

rights of individuals,” and maintain “their proper

function in a limited and separated government.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)

(citations omitted).

When a plaintiff is directly regulated by a challenged agency action, “there is ordinarily little question” that he has standing to challenge the action.

Lujan, 504 U.S. at 561. By contrast, when a “plaintiff

is not himself the object of the government action or

inaction he challenges, standing is . . . ordinarily ‘substantially more difficult’ to establish.” Id. at 562 (citation omitted). Nevertheless, “entire classes of administrative litigation” have “traditionally been brought

by unregulated” but “adversely affected parties.” Corner Post, Inc. v. Board of Governors of the Fed. Rsrv.

Sys., 603 U.S. 799, 827, 833 (2024) (Kavanaugh, J., concurring); see id. at 833-837 (collecting cases). Those

challenges make particular sense where government

regulations target someone “downstream or upstream”

from the entities that the regulations directly govern.

Alliance for Hippocratic Medicine, 602 U.S. at 384.

Petitioners here are not directly regulated, but they

are the prime targets of government regulation. They

easily satisfy the three components of Article III

standing. Petitioners produce, refine, or sell liquid

fuels and the raw materials used to produce them.

They promptly challenged EPA’s waiver, which allows

California to impose otherwise-preempted standards

that are designed to reduce the use of liquid fuel—

hitting petitioners with a classic pocketbook injury.

Setting aside EPA’s waiver would mean that California

21

cannot enforce its standards, ending the artificial depression of demand for petitioners’ products. This case

should be no more complicated than that.

I. PETITIONERS SUFFERED AN INJURY-INFACT CAUSED BY EPA’S ACTION

The court of appeals skipped the injury and causation prongs of standing, resting its holding entirely on

redressability grounds. That may be because petitioners easily satisfy the first two prongs of the Article III

standing analysis. Petitioners suffered concrete and

particularized injuries, and those injuries are fairly

traceable to EPA’s waiver decision.

A. Petitioners Suffered Classic Pocketbook

Injuries

Petitioners include businesses at every stage of the

supply chain for liquid fuels. They grow the raw materials for liquid fuel, produce and refine liquid fuel, and

sell liquid fuel at gas stations and convenience stores.

See, e.g., J.A. 127-128 (producers of corn to make ethanol), 131-132 (producers and sellers of renewable liquid

fuels), 138-139 (owners of gas stations and convenience

stores). Petitioners differ in the exact nature of their

businesses, but they all have one thing in common: they

profit from participating in the liquid-fuels market.

By design, California’s standards operate to reduce

the liquid-fuels market and thus injure those who participate in it. That is because the Advanced Clean Cars

standards aim to reduce emissions by reducing liquid

fuel combustion in vehicles. To comply, manufacturers

must produce more electric vehicles, subsidize the production of electric vehicles, implement technologies

that improve the fuel efficiency of vehicles, or some

combination thereof. See J.A. 8-9 (identifying possible

compliance technologies); 78 Fed. Reg. at 2,136-2,137

22

(same). The standards thus force automakers to produce a fleet of vehicles that use significantly less liquid

fuel or no liquid fuel at all. In fact, California repeatedly represented as much when applying for the challenged waiver. J.A. 35, 49. Fewer cars that run on liquid fuel, or more cars that run on less liquid fuel, means

less liquid fuel sold. And suppressing demand for a

party’s product is the prototypical monetary injury-infact. See TransUnion, 594 U.S. at 425; United States

v. Texas, 599 U.S. 670, 676 (2023).

Petitioners explained these prototypical pocketbook

injuries in the 14 standing declarations they submitted

with their opening brief below. Those declarations detail how petitioners participate in the liquid-fuel supply

chain and how the reduction in demand caused by California’s standards would financially injure their businesses. See J.A. 120-184. For example, producers explained that a “significant reduction in California’s gasoline demand, as contemplated by the [Advanced Clean

Cars] I program, will detrimentally impact Valero’s

business.” J.A. 147. And they confirmed their inability

to “avoid financial harm” by shifting production outside of California or by repurposing their products.

J.A. 170; see J.A. 144-145, 147-150. As these declarations underscore, petitioners have a concrete stake in

the outcome: their businesses are on the line. “This is

a classic pocketbook injury sufficient to give [them]

standing.” Tyler v. Hennepin Cnty., 598 U.S. 631, 636

(2023).

B. Petitioners’ Injuries Are Fairly Traceable To

EPA’s Waiver

Petitioners likewise satisfy Article III’s causation

requirement. To demonstrate causation, a party must

establish a “causal connection between the injury and

the conduct complained of.” Susan B. Anthony List v.

23

Driehaus, 573 U.S. 149, 158 (2014) (citation omitted).

That “requires only that the plaintiff’s injury be fairly

traceable to the defendant’s conduct.” Lexmark Int’l,

Inc. v. Static Control Components, Inc., 572 U.S. 118,

134 n.6 (2014). The connection between petitioners’ injuries and EPA’s waiver is straightforward here. The

waiver allows California’s greenhouse-gas emission

standards and zero-emission-vehicle mandate to take

effect, when federal law would otherwise preempt

them. Pet. App. 55a-57a. Those portions of the Advanced Clean Cars program operate by requiring increased fuel economy or full electrification, thereby depressing demand for petitioners’ products.

Petitioners’ injuries are attributable to government

regulation, not solely to existing consumer demand for

electric vehicles. The entire purpose of California’s

standards is to go beyond what market forces would

naturally produce. That is why California described its

regulations as “critical” for “emissions reductions” and

“critical for incentivizing production and deployment of

zero-emission vehicles.” J.A. 66. Those standards include a 22% zero-emission-vehicle mandate, far above

what the market had naturally produced. Cal. Code

Regs. tit. 13, § 1962.2(b)(1); see David Gohlke et al., Assessment of Light-Duty Plug-in Electric Vehicles in

the United States, 2010–2021, at 1 (Nov. 1, 2022),

https://perma.cc/Y6VE-2QB5. Because California’s

standards aim to reduce liquid-fuel use by increasing

the number of electric or fuel-efficient vehicles beyond

market demand, petitioners have “link[ed] their asserted injuries to the government’s regulation . . . of

someone else.” Alliance for Hippocratic Med., 602 U.S.

at 382.

24

II. PETITIONERS’ INJURIES ARE REDRESSABLE

Because petitioners suffered classic pocketbook injuries caused by a federal regulatory action, and because they challenged that action almost immediately,

it would be unusual if petitioners’ injuries were not redressable. Redressability requires only that a favorable judicial judgment would “take steps to slow or reduce” the plaintiff’s injury. Massachusetts v. EPA,

549 U.S. 497, 525 (2007). Thus, when a plaintiff asserts

an economic injury, she establishes redressability if a

favorable decision would put even one dollar back in

her pocket. Uzuegbunam v. Preczewski, 592 U.S. 279,

291 (2021). That is no high bar.

The bar is easily cleared here. Most simply, the

challenged government action creates a legal hurdle to

the use of petitioners’ products, so setting aside that

government action would provide redress. And were

that not enough, petitioners can always rely on the

“predictable effect” of regulation on third parties to establish redressability. Department of Commerce,

588 U.S. at 768. It is certainly predictable that an

electric-vehicle mandate will result in fewer liquidfuel-powered vehicles on the roads; that is the mandate’s raison d’être. At a minimum, the decision below

must be vacated because it was premised on a factual

mistake. EPA has since confirmed that the waiver allowing California to target petitioners’ products has no

definite end date. An agency action limiting the use of

petitioners’ products in perpetuity must have some

real-world effect.

25

A. Petitioners Have Established Redressability

Because They Are Challenging A Regulatory

Hurdle To The Use Of Their Products

California’s Advanced Clean Cars standards require car manufacturers to produce an increasing percentage of vehicles that consume less liquid fuel or no

liquid fuel at all. Because the standards impose a new

legal barrier to the use of petitioners’ products—and

indeed reducing consumption of petitioners’ products

is how the standards achieve their intended purpose—

vacating EPA’s waiver would provide petitioners with

redress. Article III requires nothing more.

Removing the coercive effect of

government standards provides redress

a. This Court has long recognized that removing the

“determinative or coercive effect” of government regulation “upon the action of someone else” is sufficient

to establish redressability. Bennett, 520 U.S. at 169.

Thus, if a plaintiff can establish the existence of a regulatory impediment that prevents its product from being used, that is enough.

In Bennett, this Court made clear that the removal

of an adverse agency action—even one that operates on

a third party—provides redress to individuals injured

by that action. There, a group of ranchers challenged

a biological opinion issued by the U.S. Fish and Wildlife Service, which advised the Bureau of Reclamation

to maintain minimum water levels at several reservoirs

that the ranchers used. 520 U.S. at 159-160. The government argued that Article III’s causation and redressability requirements were not met because it was

possible that the Bureau would independently opt to

reduce the ranchers’ access to water, even without the

challenged biological opinion. Id. at 168. This Court

unanimously disagreed, recognizing that the biological

1.

26

opinion had a “virtually determinative effect” on the

Bureau’s decisions because disregarding it could expose the Bureau and its employees to liability under

the Endangered Species Act. Id. at 170. The removal

of the “coercive” force of the biological opinion on the

Bureau alone established redressability. Id. at 171.

The ranchers did not need to provide additional evidence to show that their injury was “fairly traceable”

to the opinion or that it would “likely be redressed” if

the opinion were withdrawn. Id. at 169-171.

Bennett made explicit what had been assumed in a

long line of this Court’s cases resolving challenges to

government action brought by indirectly regulated

parties. For example, this Court heard a suit by private schools challenging as unconstitutional an Oregon

law making it a crime for parents to send their children

to private school. Pierce v. Society of the Sisters of the

Holy Names of Jesus and Mary, 268 U.S. 510, 534

(1925). Although the parents were directly regulated,

the private schools were the target—and there was no

doubt that they could bring the lawsuit. The Court did

not require the schools to provide evidence that parents would send their children to those schools absent

Oregon’s “unwarranted compulsion.” Id. at 535. Similarly, in CBS v. United States, this Court found that the

television network CBS could sue to challenge regulations denying a license to any broadcasting station that

conducted certain business with CBS. 316 U.S. 407,

421-423 (1942). The Court did not call for evidence that

licensees would change course and partner with CBS if

the regulations were rescinded; it was enough that potential licensees intended to comply with the regulations. Id. at 422.

b. The rule that removal of the “unwarranted compulsion” of government action satisfies redressability

27

comports with the original purpose of the redressability requirement. As this Court has repeatedly explained, redressability ensures that there is a “relationship between ‘the judicial relief requested’ and the

‘injury’ suffered.” California v. Texas, 593 U.S. 659,

660 (2021) (quoting Allen v. Wright, 468 U.S. 737, 753

n.19 (1984)). It thus prevents litigants from suing parties or challenging laws that have “nothing to do with”

their injuries, or requesting overly broad relief. Id. at

675; see Haaland v. Brackeen, 599 U.S. 255, 293 (2023)

(redressability not established because “state officials

who implement [the challenged statute] are not parties

to the suit”). And it similarly prevents courts from issuing “advisory opinion[s]” that amount to nothing

more than “a general authority to conduct oversight,”

particularly “of decisions of the elected branches of

Government.” California, 593 U.S. at 673; see Brackeen, 599 U.S. at 294.

When a plaintiff asks a court to remove a coercive

government regulation, there is no mismatch between

injury and remedy. Indeed, there is a perfect correlation between the individual’s injury (which flows from

a constraint that may artificially depress market demand) and the remedy for that injury (removing the

government constraint). And to the extent there are

distinct concerns about attenuation, those concerns are

housed in other doctrines, such as proximate-cause limitations that exclude plaintiffs whose injuries are “too

remote” from the conduct a statute prohibits. See, e.g.,

Lexmark, 572 U.S. at 133. As far as redressability is

concerned, however, Article III’s demands are the

same whether the plaintiff is directly or indirectly regulated.

c. This Court should confirm the simple, clear rule

that the removal of a regulatory hurdle to the use of a

28

challenger’s product satisfies Article III’s redressability requirement—no matter whether the regulation is

formally applied to a third party. That rule has the

benefit of comporting not just with traditional understandings of redressability but also with basic logic. As

then-Judge Kavanaugh put it, if “the Government prohibits or impedes Company A from using Company B’s

product,” there is “ordinarily little question” that Company B has standing, since Company B’s product is the

very “object” of the regulation. Energy Future Coal.,

793 F.3d at 144. Company B is being deprived of the

“opportunity to compete in the marketplace,” so a favorable judicial decision will provide at least some redress. Ibid. Or as this Court has succinctly recognized,

if a regulatory program causes an injury in fact, “[i]t

follows” that “a judicial decree directing [the government] to discontinue its program would ‘redress’ the

injury.” Northeastern Fla. Chapter of Associated Gen.

Conts. of Am. v. City of Jacksonville, 508 U.S. 656, 666

n.5 (1993).

California’s standards impose a new

regulatory hurdle to the use of petitioners’

products

The above rule—that removal of a regulatory hurdle

to the use of a challenger’s product satisfies Article III’s

redressability requirement—resolves this case. Petitioners’ injuries arise from the “determinative or coercive effect” of California’s standards (allowed to go into

effect by EPA) on third-party automakers. Bennett,

520 U.S. at 169. Although California’s standards do not

directly impose obligations on petitioners, the standards require somebody else to make vehicles that use

less of petitioners’ products. It should be irrelevant

that the requirement technically operates on automakers; the government is simply reducing the use of liquid

2.

29

fuel by regulating the assembly line rather than the gas

pump.

Again, the Advanced Clean Cars program includes

two mechanisms that directly prevent market participants from consuming as much of petitioners’ products

as they otherwise might. First, California’s zeroemission-vehicle mandate requires automakers to produce an increasing percentage of vehicles that consume

no liquid fuel. Second, California’s greenhouse-gas

emission standards require automakers to produce vehicles with increased fuel efficiency—with a corresponding reduction in the use of liquid fuel. Under either mechanism, California’s standards pose a legal

barrier to the use of petitioners’ products. In fact, California predicted that “[t]he oil and gas industry, fuel

providers, and service stations are likely to be the most

adversely affected by the proposed Advanced Clean

Cars program due to the substantial reductions in demand for gasoline.” J.A. 13. Petitioners are therefore

being denied the “opportunity to compete in the marketplace” without California’s interference. Energy

Future Coal., 793 F.3d at 144. Under this Court’s cases

and a traditional understanding of redressability, no

more record evidence is needed.

B. Petitioners Have Established Redressability

Because They Can Rely On The Predictable

Effect Of Emission Standards

Even if this Court does not apply a categorical rule

based on the removal of a regulatory hurdle to petitioners’ products, petitioners can still establish redressability through case-specific inferences about thirdparty conduct. Article III does not demand certainty;

it requires that the requested remedy will likely redress petitioners’ injuries. That standard is satisfied

30

here, where the behavior of third parties is predictable

rather than speculative.

Litigants can rely on common sense

and basic economics to demonstrate

redressability

Indirectly regulated parties have traditionally satisfied Article III’s redressability requirement so long

as the conduct of directly regulated parties is reasonably predictable. If it is, then a favorable judicial decision would “likely” redress injuries inflicted as a result

of that third party’s action—which is what Article III

requires. Davis v. Federal Election Comm’n, 554 U.S.

724, 733 (2008). A contrary rule would shield from judicial scrutiny many government actions aimed at indirectly regulated, but undeniably injured, parties.

a. When a plaintiff’s injury arises from “the unfettered choices made by independent actors,” a plaintiff

must show that the third party will behave in such a

way as to “permit redressability of injury.” Lujan,

504 U.S. at 562 (citation omitted). In applying that

rule, this Court has repeatedly distinguished between

reliance on speculative third-party actions and reliance

on predictable third-party behavior. Record evidence

is required to bolster the former but not the latter.

When third-party behavior is predictable, commonsense inferences can suffice. This Court held as

much in Department of Commerce, 588 U.S. 752.

There, the Court concluded that a group of States with

a disproportionate share of noncitizens had standing to

challenge the inclusion of a citizenship question in the

census. Id. at 767. Although the States’ harm “depend[ed] on the independent action of third parties”—

the noncitizens living in those States—it was “predictable” that noncitizens would be “reluctan[t] to answer

1.

31

a citizenship question” and thus potentially not respond at all. Id. at 767-768. The depressed population

count, in turn, could result in a diversion of resources

from the State challengers. Id. at 767. The Court accepted that predictable chain of events based on common sense and historical practice. Id. at 768. It did not

require the challengers to gather, for example, affidavits from noncitizens asserting that they would not respond to a census with a citizenship question.

Although Department of Commerce focused on causation, its reasoning applies equally to Article III’s redressability requirement. After all, “causation and redressability . . . are often ‘flip sides of the same coin.’ ”

Alliance for Hippocratic Med., 602 U.S. at 380 (quoting Sprint Commc’ns Co. v. APCC Servs., Inc.,

554 U.S. 269, 288 (2008)). For that reason, lower courts

have found Article III’s redressability requirement

satisfied based on the predictable response of a third

party to a judicial decision in the plaintiff’s favor. See,

e.g., Skyline Wesleyan Church v. California Dep’t of

Managed Health Care, 968 F.3d 738, 749-750 (9th Cir.

2020).

Indeed, this Court applied similar reasoning in

Massachusetts v. EPA, when it determined that Massachusetts satisfied Article III’s redressability requirement by looking to the predictable effect on global

climate change of requiring EPA to regulate

greenhouse-gas emissions. 549 U.S. at 525-526. In

finding redressability, the Court attached “considerable significance” to EPA’s own statements about its

regulatory priorities, which suggested that ordering

EPA to set emission standards would cause fewer vehicle emissions and therefore redress petitioners’ injuries. Id. at 526. That is, the Court found that an effect

32

is predictable, and sufficient to establish redressability, when the agency itself presupposes that effect.

b. By contrast, redressability cannot rest on mere

speculation. This Court has articulated three circumstances where relief is too speculative to satisfy the demands of Article III. None is applicable here.

First, when a plaintiff’s causation or redressability

theory relies on “counterintuitive” assumptions about

third-party behavior, the plaintiff may need to support

that theory with “stronger evidence.” California,

593 U.S. at 678. That was true in California, where the

State challengers failed to establish redressability because they sought to attack a government healthcare

mandate that lacked any enforcement mechanism. The

Court found it “counterintuitive” “that an unenforceable mandate will cause [the States’] residents to enroll

in valuable benefits programs that they would otherwise forgo,” so the Court required “stronger evidence”

that the mandate would actually have such an effect.

Ibid.

Second, redressability may also be too speculative if

a plaintiff relies on a chain of events with thin links between them. For example, in Alliance for Hippocratic

Medicine, the plaintiffs relied on overly “complicated

causation theories” to establish their standing to sue.

602 U.S. at 386. The plaintiff doctors claimed that they

suffered increased costs or potential liability as a result

of the FDA’s decisions to relax mifepristone regulations. Id. at 387. But the doctors would first have to

experience “an increase in the number of pregnant

women seeking treatment” for mifepristone complications, and then those treatments would have to result

in the doctors’ being “sued or required to pay higher

insurance costs.” Id. at 391-392. More “evidence” was

33

needed to prove that this chain of events was likely to

occur. Id. at 391.

Third, if the legal impact of a judicial decision is unclear, redressability may be too speculative. That was

true in Brackeen, where the challenged statute was enforced by non-party state officials, not the federal defendants. As a result, this Court’s opinion could at best

serve as a “persuasive . . . advisory opinion[].”

599 U.S. at 294 (citations omitted). A similar problem

existed in United States v. Texas, where the challenged

guidelines “merely advise[d] federal officials about

how to exercise their prosecutorial discretion when it

comes to deciding which aliens to prioritize for arrest

and removal.” 599 U.S. at 691 (Gorsuch, J., concurring

in the judgment). And in Murthy v. Missouri, the government action had concluded by the time the suit was

brought, so a judicial decision also served a purely advisory function. 603 U.S. 43, 72-73 (2024). In all those

cases, additional evidence was required to establish redressability not because the federal government was

regulating a third party but because it was not actively

regulating at all.

c. The distinction between predictable effects

(which do not require record evidence) and counterintuitive or unlikely effects (which do) is especially important for lawsuits brought by indirectly regulated

parties.

The Court reinforced this point just last Term in Alliance for Hippocratic Medicine. Even as it disapproved the particular plaintiffs’ standing theories, the

Court acknowledged “a variety of familiar circumstances where government regulation of a third-party

individual or business may be likely to cause injury in

fact to an unregulated plaintiff.” 602 U.S. at 384. For

example, it is predictable that government regulation

34

of one business “may cause downstream or upstream

economic injuries to others in the chain.” Ibid. (citing

National Credit Union Admin. v. First Nat’l Bank &

Trust Co., 522 U.S. 479, 488 n.4 (1998); General Motors

Corp. v. Tracy, 519 U.S. 278, 286-287 (1997); Barlow

v. Collins, 397 U.S. 159, 162-164 (1970); and Association of Data Processing Serv. Orgs., Inc. v. Camp, 397

U.S. 150, 152 (1970)). And it is predictable that when

the government “regulates parks, national forests, or

bodies of water,” it will affect the users of those natural

resources. Id. at 385 (citing Summers v. Earth Island

Inst., 555 U.S. 488, 494 (2009)). “The list goes on.”

Ibid. (citing Department of Commerce, 588 U.S. at 766768). In all such cases, plaintiffs rely on “a predictable

chain of events leading from the government action to

the asserted injury.” Ibid.

Automakers would predictably adjust

their fleets if EPA’s waiver were vacated

The effect of EPA’s waiver on automakers is more

than predictable; it is obvious. EPA’s waiver puts in

place California’s Advanced Clean Cars standards.

Those standards are specifically designed to reduce the

number of conventional, liquid-fuel-powered vehicles

that would otherwise be produced. J.A. 110, 115-116.

And no one has disputed that automakers have historically responded to California’s greenhouse-gas emission and zero-emission-vehicle standards by selling

fewer conventional vehicles. See 78 Fed. Reg. at 2,1412,142. After all, if that were not the historical response,

California “would presumably not bother with such efforts.” Massachusetts, 549 U.S. at 526 (citation omitted).

In continuing to defend its standards, California has

confirmed that it is intentionally trying to reduce de2.

35

mand for petitioners’ products. California has repeatedly told EPA that the State wants its greenhouse-gas

emission standards to reduce the emissions that come

from burning liquid fuel. It has explained that its

standards increase the number of electric vehicles in

use, thereby avoiding the “production and delivery of

gasoline.” J.A. 84. And California represented to EPA

that the standards were “critical not just for immediate

emissions reductions but also” for “greater emission

reductions in the future.” J.A. 66. If regulations are

“critical” in the government’s telling, surely litigants

can reasonably predict that they will have some effect.

The bottom line here is unavoidable. If EPA’s

waiver is vacated, California can no longer force automakers to make more electric vehicles or higherefficiency vehicles than they would otherwise produce

in response to market forces. Free of government interference, automakers will respond to market demand, including by making more vehicles that run on

more liquid fuel or by adjusting their distribution plans

or prices in ways that will result in more liquid-fuelpowered vehicle sales. That theory of automaker behavior is far from speculative. It is Economics 101.

C. The Court Of Appeals’ Redressability

Analysis Is Wrong

Under the principles discussed above, the redressability inquiry should have been straightforward in this

case. Vacating EPA’s waiver would remove a legal obstacle to the use of petitioners’ products, and automaker behavior is predictable in any event. Yet the

court of appeals blinded itself to the obvious. It concluded that petitioners do not have Article III standing

by creating artificially high evidentiary barriers to establishing redressability. In so doing, the court made

36

it nearly impossible for many parties indirectly affected by government action to secure judicial relief,

and created incentives for government gamesmanship.

The decision below contradicts this

Court’s precedents and common sense

a. The court of appeals overstated petitioners’ burden to establish redressability. Although the court

acknowledged that it was “possible” automakers would

change their plans and sell more liquid-fuel-powered

vehicles or vehicles that use more liquid fuel if EPA’s

waiver were vacated, it faulted petitioners for failing to

supply “record evidence” to that effect, such as “additional affidavits.” Pet. App. 24a (internal quotation

marks omitted). In the court’s view, it was just as

likely that California’s standards have no real-world

impact because some manufacturers are already selling “more qualifying vehicles in California than the

State’s standards require.” Id. at 28a (emphasis omitted) (quoting J.A. 202). And the court believed that

“unsupported assumptions regarding the future actions of third-party market participants are insufficient to establish Article III standing”—full stop. Id.

at 29a (internal quotation marks omitted).

As explained, the court of appeals’ categorical evidentiary demand is doubly wrong. First, it departs

from Bennett and the D.C. Circuit’s own precedent establishing that the removal of a regulatory hurdle to

the use of the challenger’s product satisfies redressability. See pp. 25-29, supra. Indeed, the court of appeals did not even acknowledge its precedent holding

that “remov[ing] a regulatory hurdle” to the use of fuel

suffices to establish redressability. Energy Future

Coal., 793 F.3d at 144. And second, petitioners were at

least entitled to rely on common sense: automakers

would predictably produce more vehicles that use more

1.

37

liquid fuel if no longer subject to standards mandating

the production of certain quantities of electric or fuelefficient vehicles. See pp. 29-35, supra.

Nor could the court of appeals rely on supposed

market forces to justify its heightened redressability

burden. The limited evidence the court invoked supported the opposite conclusion. The court relied on

California’s declaration explaining that automakers

had sold more electric vehicles than required in 2022—

likely in anticipation of the increasingly stringent

standards for the ensuing years. Pet. App. 28a (citing

J.A. 202). That says nothing about how automakers

would respond if they did not need to meet California’s

standards ever again. The court also highlighted that

the intervening automakers had suggested that “internal sustainability forces and external market forces”

were resulting in the production of more electric vehicles. Id. at 24a n.8 (quoting C.A. Industry Resp.-Int.

Br. 6-7). But those automakers never said that every

automaker would exceed California’s standards if the

standards were vacated. To the contrary, as petitioners explained in reply, five individual automakers intervened precisely because a decision vacating the

waiver would put them at a “competitive disadvantage.” J.A. 211 (quoting C.A. Industry Resp.-Int.

Br. 17). That is, those five individual automakers were

concerned that other automakers—many of whom have

remained silent throughout this litigation—would pull

back their electric-vehicle numbers and instead sell

more liquid-fuel-powered vehicles.

b. Even if petitioners were legally required to produce record evidence to support redressability, plenty

such evidence existed. The record included 14 declarations explaining how California’s standards depress demand for liquid fuel, and how petitioners’ injuries

38

would be ameliorated if the waiver were vacated.

Other declarants further noted that California itself

had recently projected that the waiver would “reduce

emissions through reductions in fuel production.” J.A.

148 (internal quotation marks and citation omitted); see

J.A. 180; see also J.A. 174 (similar statements by Minnesota, which has adopted California’s standards). Additional record evidence likewise documented California’s position that it needs its greenhouse-gas standards to reduce motor-vehicle emissions and that doing

so decreases liquid-fuel consumption. That included

California’s 2021 comment representing that its standards are “critical not just for immediate emissions reductions but also” for “greater emission reductions in

the future.” J.A. 66. And California elsewhere had

publicly explained that the standards increase the

number of electric vehicles in use, thereby avoiding

“production and delivery of gasoline.” J.A. 84.

None of this evidence was enough for the court of

appeals. In context, the court apparently thought that

petitioners could meet their burden of showing redressability only by providing affidavits from automakers promising to change production or pricing if the

waiver were vacated. This Court has never required

the endorsement of a directly regulated third party before an indirectly regulated party can sue, and it should

not create such a rule now. Doing so would make it

impossible for many parties indirectly affected by government action to secure judicial relief and would create incentives for government gamesmanship. See

pp. 41-45, infra.

39

The

decision

below

conflates

redressability with mootness

The decision below creates additional doctrinal confusion because it conflates mootness and redressability. The court of appeals thought that the redressability inquiry here was “further complicated by the relatively short duration of the waiver.” Pet. App. 22a. As

the court saw it, petitioners needed to demonstrate not

only that manufacturers were likely to respond to a judicial decision vacating the waiver by “changing their

fleets,” but also that they “would do so relatively

quickly—by Model Year 2025”—the year in which the

court believed EPA’s waiver terminated. Id. at 23a. In

the court’s view, because vehicle product cycles “can

also begin years before a vehicle is launched,” it was

“far from clear” that automakers could “change

course . . . within the model years covered by the

waiver.” Id. at 24a.

Those (misplaced) timing concerns sound in mootness, not redressability. Redressability, like the other

elements of standing, is assessed at the time the suit is

filed. See Lujan, 504 U.S. at 569 n.4. Here, petitioners

brought suit immediately after EPA’s waiver reinstatement in 2022. At that point, the waiver was scheduled to be in effect for nearly four years. There was

ample evidence in the record that automakers are at

least nimble enough to change a production choice or a

vehicle price four years in advance—surely enough to

affect a single dollar of petitioners’ sales. See pp. 3738, supra; J.A. 209-211. Indeed, the court of appeals

relied on a comment from Toyota explaining that some

manufacturers were producing their vehicle fleets one

year in advance—which affirmatively undermines the

notion that no manufacturer could change plans four

years in advance. Pet. App. 24a; see J.A. 98-100.

2.

40

Given that context, the court’s emphasis on the “relatively short nature of the waiver” makes sense only as

a concern that the case was approaching model year

2025 still unresolved. Pet. App. 25a; see C.A. Oral Arg.

34:46-34:49 (Garcia, J.) (“[Y]ou need about two more

years to plan and adjust how you’re producing vehicles,

and I don’t see how we can assume that’s going to happen by model year [20]25.”). But it “is the doctrine of

mootness, not standing, that addresses whether ‘an intervening circumstance has deprived the plaintiff of a

personal stake in the outcome of the lawsuit.’ ” West

Virginia v. EPA, 597 U.S. 697, 719 (2022) (quoting

Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 72

(2013)). Indeed, the federal government recently explained to this Court that when its regulations operate

on a short time horizon, Article III concerns should be

evaluated under the rubric of mootness, not redressability. See FCC Br. 14, FCC v. Consumers’ Research,

No. 24-354 (explaining that the mootness doctrine applies when “the challenged action is in its duration too

short to be fully litigated”) (citation omitted).

That “distinction matters” for several reasons.

West Virginia, 597 U.S. at 719. First, although plaintiffs have the burden to establish Article III standing,

the burden flips for mootness. EPA thus would “bear[]

the burden to establish that a once-live case has become moot.” Ibid. And neither intervenors nor EPA

pointed the court of appeals to evidence sufficient to

show that automakers’ decisions have become irrevocable. Because the court misconstrued its mootness

concern as a redressability obstacle, they had no need

to.

Second, because mootness would have been a new

development, the court below would have had to con-

41

sider the supplemental record evidence that petitioners offered. Counsel for the state and local government

intervenors made arguments sounding in mootness for

the first time at oral argument. In response, petitioners submitted supplemental declarations from individuals experienced in vehicle-emission compliance.

Those declarations explained that “automobile manufacturers could and likely would change their production, pricing, and/or distribution plans for Model Year

2025 as late as December 2025, but at a minimum well

into 2025.” J.A. 215, 220. But the court rejected petitioners’ supplemental brief and accompanying declarations as too late to show redressability. Pet. App. 31a.

Had the court properly characterized California’s arguments as newly raised concerns about mootness,

there would have been no doubt about the propriety of

petitioners’ supplemental responses.

Third, and critically, mootness doctrine contains exceptions that redressability does not. In particular, if

there is a concern about the “relatively short nature of

the waiver,” Pet. App. 25a, then the case would be an

excellent candidate for applying “the established exception to mootness for disputes capable of repetition,

yet evading review.” Federal Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007).

But if that concern is improperly characterized as going to redressability, the challengers are out of luck.

3. The decision below creates bad policy

The decision below stacks bad policy on top of bad

law. It would put injured businesses at the mercy of

regulated third parties whose interests may not align,

incentivize agency mischief, and create a one-way

ratchet in favor of regulators over the regulated.

42

a. To start, the court of appeals’ rule means that indirectly regulated entities will often be unable to challenge government action that undeniably injures them.

That is because an indirectly regulated entity’s standing will often depend on the actions of directly regulated parties. And the interests of directly regulated

parties and downstream or upstream entities often diverge. That was the case where “workers challenged a

Department of Labor rule that unlawfully allowed employers to access inexpensive foreign labor, with the effect of lowering American workers’ wages.” Corner

Post, 603 U.S. at 836 (Kavanaugh, J., concurring) (citing Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014)).

It is also the case where a business challenges underregulation of a competitor. See, e.g., Monsanto Co.

v. Geertson Seed Farms, 561 U.S. 139, 153-156 (2010)

(conventional alfalfa farmers had standing to challenge

deregulation of genetically modified alfalfa); General

Motors Corp., 519 U.S. at 282, 286-287 (purchaser of

natural gas had standing to challenge Ohio’s differential tax treatment of gas sales by certain Ohio utilities

and gas sales by out-of-state sellers). Justiciable

claims of under-regulation may also come from outside

the industry, as when insurance companies challenged

the recission of vehicle safety standards. See Motor

Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29 (1983).

Even when directly regulated entities and upstream

or downstream entities are not squarely at odds, other

considerations might prevent a regulated party from

joining the effort to challenge government action.

Members of the directly regulated industry may be

more minimally burdened by an action than downstream actors. The regulated entity may be unwilling

43

to risk negative publicity by challenging a popular government action, especially if it has less at stake. The

government may have effectively purchased the regulated entity’s cooperation by doling out countervailing

regulatory benefits. Or businesses might simply lack

the appetite to confront their regulator in court.

Those risks are particularly acute in industries that

require lead time to comply with standards. In such

industries, regulated entities may prefer to cooperate

with the agency in exchange for certainty about the future regulatory environment or other benefits. The

agency action may still have sweeping effect, but the

only viable plaintiffs would have no incentive to bring

suit. That was true here, where automakers had incentives to cooperate with EPA and California to obtain

regulatory stability and to avoid the perceived negative

publicity of interfering with California’s environmental

efforts. In short, one industry should not be held hostage to a related industry’s incentives.

b. The decision below creates troubling incentives

for agencies, too. It teaches agencies that they can target entire industries with crippling burdens so long as

they act through a conduit and placate that conduit.

Here, EPA, California, and several automakers entered into “California Framework Agreements” committing the automakers to accede to California’s standards in exchange for certain benefits like additional

lead time. CARB, Framework Agreements on Clean

Cars (Aug. 17, 2020), https://perma.cc/ZM4Z-GDEK.

Having entered into those agreements, the select automakers that intervened in this case were forced into

defending California’s standards, lest they be left to

compete in a market undisturbed by California’s artificial distortions. But appeasing the directly regulated

industry should not insulate agency action from review,

44

particularly if that action cripples numerous other industries.

A too-demanding redressability standard may also

encourage agencies to act over shorter time horizons to

avoid meaningful review. Under the reasoning of the

court below, EPA’s latest waiver decision was effectively unchallengeable because it applied “only” over

four years. Pet. App. 22a. That reasoning would have

the perverse effect of shielding from review the most

important and politically sensitive issues on which

presidential administrations may disagree. See, e.g.,

West Virginia, 597 U.S. at 715-718 (describing the history of EPA’s Clean Power Plan across presidential administrations). California’s Section 209(b) waivers for

climate-change-focused standards are a perfect example: EPA has granted or rescinded a waiver like clockwork with each change in administration. An inflated

redressability standard all but guarantees that these

course-changes mean that agency authority is never

settled, even in the most consequential cases.

c. Finally, the decision below creates a one-way

ratchet in favor of the regulator over the regulated. A

State will always have “a legitimate interest in the continued enforceability of its own statutes,” regardless of

their effects. Maine v. Taylor, 477 U.S. 131, 137 (1986).

A State’s interest in vindicating its laws would presumably allow California to challenge or intervene to defend any decision granting or denying a waiver. See

C.A. State & Local Gov. Intervention Mot. 10 (citing

Alaska v. Department of Transp., 868 F.2d 441, 444

(D.C. Cir. 1989)). As California puts it, with EPA’s

“waiver, its standards have legal force; without it, they

do not,” so it need not show that the waiver influences

the “mix of cars.” Cal. Br. in Opp. 14 n.5 (citing Alliance for Hippocratic Med., 602 U.S. at 382). But under

45

the court of appeals’ theory, industries targeted by

California’s laws have no such luck.

D. At The Very Least, Petitioners Have

Established Redressability Because The

Challenged Waiver Continues In Perpetuity

If there were any doubt that petitioners’ injuries are

redressable, EPA’s recent admission that its waiver

has no definite end point should remove it. Even under

the court of appeals’ unduly high bar for redressability,

petitioners have standing to challenge what EPA now

freely describes as an open-ended waiver allowing California to impose emission standards in perpetuity.

1. The court of appeals’ standing analysis was

premised on its assumption that the waiver, and thus

California’s standards, would sunset after 2025. Pet.

App. 14a, 22a. As noted, the court viewed the “relatively short duration of the waiver” as “complicat[ing]”

the redressability analysis. Id. at 22a. According to

the court, petitioners needed to demonstrate not only

that manufacturers were likely to respond to a judicial

decision vacating the waiver by “changing their fleets,”

but also that manufacturers would do so “relatively

quickly—by Model Year 2025.” Id. at 23a (emphasis

added). And the court found it “far from clear” that

manufacturers would change their prices or production

cycles by model year 2025. Id. at 24a.

EPA has now admitted that the D.C. Circuit’s central premise was incorrect. In opposing certiorari,

EPA candidly explained that its waiver has no end

date. See EPA Br. in Opp. 12-13. “Contrary to the

court of appeals’ suggestion,” EPA told this Court, the

waiver “does not expire after model-year 2025.” Id. at

12. When this lawsuit was filed, both the zeroemission-vehicle mandate and the greenhouse-gas

emission standards applied to model year 2025 “and

46

subsequent.” J.A 50 (emphasis added). In 2022, after

petitioners sued, California amended its zero-emissionvehicle mandate to sunset after model year 2025. See

p. 16, supra. But California’s greenhouse-gas emission

standards continue to “remain in force” after model

year 2025. EPA Br. in Opp. 13. So in approving the

waiver, EPA approved standards that do not expire unless California chooses to replace them, which it has

not done for its greenhouse-gas standards.

After this certiorari petition was fully briefed, EPA

formalized its position that California’s greenhousegas emission standards do not sunset. In its December

17, 2024 decision granting California’s waiver request

for its new Advanced Clean Cars II standards, EPA

explained that California’s “[greenhouse-gas] emission

standards applicable to 2025 and subsequent model

years remain[] unchanged.” ACC II Decision Document 40 n.96. Those emission standards did not need

any further approval from EPA; they “continue to be

covered by EPA’s [Advanced Clean Cars] I waiver issued in 2013 . . . and reinstated in 2022.” Ibid.

2. Given EPA’s newly articulated position, it should

be beyond question that vacating the challenged waiver

would ameliorate petitioners’ injuries at least to some

degree. Even if the court of appeals were right that it

would take several years for every automaker to

change its production cycle, Pet. App. 23a, some of the

relevant standards are set to govern for more than several years. In other words, while the court below worried that vehicle manufacturers could not change

course “quickly” enough, ibid., speed should not have

been a concern. Vacating an indefinite waiver permitting California to enforce stringent emission standards

would necessarily have some effect on vehicle pricing,

production, or distribution at some future point—

47

thereby alleviating at least one dollar of the artificially

depressed demand for petitioners’ products.

California and EPA have since made factual findings confirming that the perpetual greenhouse-gas

emission standards will depress demand for liquid fuel

into the next decade. In recently proposing to approve

California’s request to revise its state implementation

plan, EPA accepted California’s prediction that its

greenhouse-gas standards would “achieve additional

criteria pollutant emission reductions” in the State

through at least 2037. 89 Fed. Reg. at 82,557 & n.19

(citing J.A. 93-94). Citing the same analysis it had submitted when urging EPA to reinstate the challenged

waiver, California reiterated that its greenhouse-gas

emission standards target liquid fuel. Specifically, California attributed the criteria-pollutant reductions to

the “avoided production and delivery of gasoline” from

automakers’ compliance with those ongoing standards.

Id. at 82,559 & n.37 (citing J.A. 84). That analysis—

embraced by EPA as “reasonable and adequately

supported”—recognizes that California’s greenhousegas emission standards will continue to affect liquidfuel consumption for more than a decade. Id. at 82,558.

At least one automaker is likely to adjust a single production or pricing decision over that period.

***

This case really is this simple: petitioners make and

sell liquid fuels. EPA’s waiver allows California to enforce standards requiring fewer cars that run on liquid

fuel. Indeed, California’s goal is to eliminate reliance

on petitioners’ products entirely. Removing EPA’s

waiver would thus likely cause at least a single customer to purchase at least a dollar’s worth more of petitioners’ products. The legality of EPA’s actions may

48

raise controversial statutory or political questions, but

their justiciability should never have been in doubt.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment below.

Respectfully submitted.

ERIC D. MCARTHUR

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

Counsel for American Fuel

& Petrochemical Manufacturers, Domestic Energy

Producers Alliance, Energy

Marketers of America, and

National Association of

Convenience Stores

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

JULIA J. MROZ

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

LESLIE B. ARFFA

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

Counsel for Valero Renewable Fuels Company, LLC

BRITTANY M. PEMBERTON

BRACEWELL LLP

2001 M Street NW

Suite 900

Washington, DC 20036

Counsel for Diamond Alternative Energy, LLC and

Valero Renewable Fuels

Company, LLC

49

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY PLLC

800 Connecticut Ave NW

Suite 900

Washington, DC 20006

MATTHEW W. MORRISON

SHELBY L. DYL

PILLSBURY WINTHROP

SHAW PITTMAN LLP

1200 Seventeenth Street NW

Washington, DC 20036

Counsel for Clean Fuels Development Coalition, ICM,

Inc., Illinois Corn Growers

Association, Kansas Corn

Growers Association, Michigan Corn Growers Association, Missouri Corn Growers Association, and Valero

Renewable Fuels Company,

LLC

Counsel for Diamond Alternative Energy, LLC, Iowa

Soybean Association, The

Minnesota Soybean Growers Association, and South

Dakota Soybean Association

RICHARD S. MOSKOWITZ

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS

1800 M Street NW

Suite 900 North

Washington, DC 20036

Counsel for American Fuel

& Petrochemical Manufacturers

JANUARY 27, 2025

APPENDIX

APPENDIX

TABLE OF CONTENTS

Statutory provisions:

42 U.S.C. § 7507............................................................ 1a

42 U.S.C. § 7543............................................................ 2a

1. 42 U.S.C. § 7507 provides:

New motor vehicle emission standards in nonattainment areas

Notwithstanding section 7543(a) of this title, any State

which has plan provisions approved under this part

may adopt and enforce for any model year standards

relating to control of emissions from new motor vehicles or new motor vehicle engines and take such other

actions as are referred to in section 7543(a) of this title

respecting such vehicles if—

(1) such standards are identical to the California standards for which a waiver has been granted for such

model year, and

(2) California and such State adopt such standards at

least two years before commencement of such model

year (as determined by regulations of the Administrator).

Nothing in this section or in subchapter II of this chapter shall be construed as authorizing any such State to

prohibit or limit, directly or indirectly, the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California as meeting California

standards, or to take any action of any kind to create,

or have the effect of creating, a motor vehicle or motor

vehicle engine different than a motor vehicle or engine

certified in California under California standards (a

“third vehicle”) or otherwise create such a “third vehicle”.

(1a)

2a

2. 42 U.S.C. § 7543 provides:

State standards

(a) Prohibition

No State or any political subdivision thereof shall

adopt or attempt to enforce any standard relating to

the control of emissions from new motor vehicles or

new motor vehicle engines subject to this part. No

State shall require certification, inspection, or any

other approval relating to the control of emissions from

any new motor vehicle or new motor vehicle engine as

condition precedent to the initial retail sale, titling (if

any), or registration of such motor vehicle, motor vehicle engine, or equipment.

(b) Waiver

(1) The Administrator shall, after notice and opportunity for public hearing, waive application of this

section to any State which has adopted standards

(other than crankcase emission 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. No

such waiver shall be granted if the Administrator

finds that—

(A) the determination of the State is arbitrary

and capricious

3a

(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.

(2) If each State standard is at least as stringent as

the comparable applicable Federal standard, such

State standard shall be deemed to be at least as protective of health and welfare as such Federal standards for purposes of paragraph (1).

(3) In the case of any new motor vehicle or new motor vehicle engine to which State standards apply

pursuant to a waiver granted under paragraph (1),

compliance with such State standards shall be

treated as compliance with applicable Federal

standards for purposes of this subchapter.

(c) Certification of vehicle parts or engine parts

Whenever a regulation with respect to any motor vehicle part or motor vehicle engine part is in effect under

section 7541(a)(2) of this title, no State or political subdivision thereof shall adopt or attempt to enforce any

standard or any requirement of certification, inspection, or approval which relates to motor vehicle emissions and is applicable to the same aspect of such part.

The preceding sentence shall not apply in the case of a

State with respect to which a waiver is in effect under

subsection (b).

4a

(d) Control, regulation, or restrictions on registered

or licensed motor vehicles

Nothing in this part shall preclude or deny to any State

or political subdivision thereof the right otherwise to

control, regulate, or restrict the use, operation, or

movement of registered or licensed motor vehicles.

(e) Nonroad engines or vehicles

(1) Prohibition on certain State standards

No State or any political subdivision thereof shall

adopt or attempt to enforce any standard or other

requirement relating to the control of emissions

from either of the following new nonroad engines or

nonroad vehicles subject to regulation under this

chapter—

(A) New engines which are used in construction

equipment or vehicles or used in farm equipment

or vehicles and which are smaller than 175 horsepower.

(B) New locomotives or new engines used in locomotives.

Subsection (b) shall not apply for purposes of this

paragraph.

(2) Other nonroad engines or vehicles

(A) In the case of any nonroad vehicles or engines

other than those referred to in subparagraph (A)

or (B) of paragraph (1), the Administrator shall,

after notice and opportunity for public hearing,

5a

authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines if

California determines that California standards

will be, in the aggregate, at least as protective of

public health and welfare as applicable Federal

standards. No such authorization shall be granted

if the Administrator finds that—

(i) the determination of California is arbitrary

and capricious,

(ii) California does not need such California

standards to meet compelling and extraordinary conditions, or

(iii) California standards and accompanying

enforcement procedures are not consistent

with this section.

(B) Any State other than California which has

plan provisions approved under part D of subchapter I may adopt and enforce, after notice to

the Administrator, for any period, standards relating to control of emissions from nonroad vehicles or engines (other than those referred to in

subparagraph (A) or (B) of paragraph (1)) and

take such other actions as are referred to in subparagraph (A) of this paragraph respecting such

vehicles or engines if—

(i) such standards and implementation and enforcement are identical, for the period concerned, to the California standards authorized

by the Administrator under subparagraph (A),

and

6a

(ii) California and such State adopt such standards at least 2 years before commencement of

the period for which the standards take effect.

The Administrator shall issue regulations to

implement this subsection.

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.

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