Petitioners Brief — Diamond Alternative Energy, LLC, et al., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJan 27, 2025
Ask Donna
What actually matters in this document.
Text
No. 24-7
In the Supreme Court of the United States
DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,
PETITIONERS ,
v.
ENVIRONMENTAL PROTECTION AGENCY , ET AL.
ON 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.