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

No. 24-7

In the Supreme Court of the United States

__________

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

__________

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

__________

Thomas A. Berry

Counsel of Record

Brent Skorup

Christine Marsden

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

February 3, 2025

i

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.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION

AND SUMMARY OF ARGUMENT ............................ 2

ARGUMENT ................................................................ 5

I. LOWER COURTS STRAIN TO FIND

STANDING

DEFICIENCIES

IN

ORDER TO PREMATURELY DISMISS

CASES AND CONTROVERSIES..................... 5

CONCLUSION ............................................................ 9

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ass’n of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150 (1970) .................................................. 6

Cato Inst. v. SEC, 4 F.4th 91 (D.C. Cir. 2021) ............ 3

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ........... 6

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........... 6

Massachusetts v. EPA, 549 U.S. 497 (2007)................ 9

Uzuegbunam v. Preczewski, 592 U.S. 279

(2021) ........................................................................ 5

Statutes

5 U.S.C. § 552(a)(6)(E)(iii) ........................................... 6

Other Authorities

Advanced Clean Cars Program, CAL. AIR RES.

BD. (last visited Jan. 26, 2025) ................................ 8

Evan Tsen Lee & Josephine Mason Ellis, The

Standing Doctrine’s Dirty Little Secret, 107

NW. U.L. REV. 169 (2015) ......................................... 6

Robert J. Pushaw, Jr., The Court Continues to

Confuse Standing: The Pitfalls of Faux

Article III “Originalism,” 31 GEO. MASON L.

REV. 893 (2024) ................................................ 5, 6, 7

Steven L. Winter, The Metaphor of Standing

and the Problem of Self-Governance, 40

STAN. L. REV. 1371 (1988) ........................................ 6

iv

Tracey E. George & Robert J. Pushaw Jr.,

How is Constitutional Law Made?, 100

MICH. L. REV. 1265 (2002) ........................................ 7

Regulations

17 C.F.R. § 202.5 .......................................................... 3

Constitutional Provisions

U.S. CONST. art. III, § 2, cl. 1 ....................................... 5

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, produces the annual

Cato Supreme Court Review, and files amicus briefs.

This case interests Cato because the petitioners

presented a clear “case or controversy” when they filed

this lawsuit challenging the coercive effect of federal

and state regulations on their businesses. Yet the

lower court dismissed the suit, applying a flawed conception of Article III standing that defies common

sense. Cato has experienced a similar fate, having had

its own case dismissed by the D.C. Circuit on similar

grounds. Cato wishes to highlight lower courts’ misuse

of standing doctrines to dismiss meritorious, viable

challenges to government regulation. This overly strict

interpretation of standing doctrine departs from the

Constitution’s original meaning and should be put to

an end.

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

Decades ago, Congress granted California special

status under the Clean Air Act to remedy environmental concerns unique to California, such as high smog

levels in the Los Angeles Basin. Pet. Br. 2. However,

the U.S. Environmental Protection Agency (EPA) has

given California excessive latitude—via regulatory

waiver from federal law—to pass a series of regulations intended to reduce fuel emissions and the

amount of fuel used in the state. Because a high percentage of automobile and fuel products are sold in

California, these state regulations will have a national

and global impact on the economy.

Diamond Alternative Energy and other producers

of liquid fuel (and raw materials for liquid fuel) sued

to block enforcement of and set aside an EPA waiver.

The fuel producers filed declarations explaining that

California’s strict automobile emissions regulations

would cause fewer fuel-producing cars to be sold, depressing fuel sales and harming them financially.

However, the D.C. Circuit concluded that the fuel producers had failed to demonstrate that vacating the

EPA waiver would change auto sales or increase fuel

purchases. See Pet. Br. 13. Therefore, it held that the

fuel industry’s claimed injuries were not shown to be

redressable and that they lacked standing to sue. Id.

at 23a.

The decision below demonstrates that lower courts’

application of standing doctrine too often has strayed

unacceptably from this Court’s precedents and from

the original meaning of Article III’s Case or Controversy Clause. Increasingly, invocations of standing

doctrine have become a tool for judicial abdication,

3

even when important rights and issues are at stake.

Standing has been used as a gating mechanism to

avoid taking up difficult or unpalatable legal challenges.

Indeed, the Cato Institute recently fell victim to the

D.C. Circuit’s dubious redressability standards in a

First Amendment case against the Securities and Exchange Commission (SEC). See Cato Inst. v. SEC, 4

F.4th 91, 92 (D.C. Cir. 2021). Many Americans have

been subjected to SEC investigation, and one approached Cato about publishing criticisms of the SEC’s

prosecutorial tactics. Id. at 93. However, the SEC’s

longstanding requirement2 that anyone settling an

SEC investigation must agree to never publicly deny

the SEC’s (unproven) allegations prevented Cato from

publishing its planned manuscript. Id. Cato therefore

challenged the SEC’s gag requirement as a violation of

the First Amendment rights of the prospective author

and of Cato as a publisher.

But the district court and D.C. Circuit held that

Cato lacked standing to sue. See id. The D.C. Circuit’s

perplexing rationale was that Cato’s free speech injury

was not redressable. The court speculated that even if

it declared the SEC gag policy unconstitutional and

unenforceable, “a [district] court may institute criminal contempt proceedings against” Cato’s commissioned authors “absent the SEC’s consent.” Id. at 95.

This implausible conjecture—that a district court

would enforce an unconstitutional, defunct policy—

2 17 C.F.R. § 202.5.

4

signals that some lower courts are misapplying the

purpose and demands of standing doctrine.

In much the same way, the D.C. Circuit’s decision

below is perplexing and conjectural. The court cited ostensible standing deficiencies, obviating the need to

evaluate the merits of petitioners’ numerous claimed

injuries. Notably, “redressability” is only the latest jurisdictional shield that has blocked review of the EPA’s

contested decision shaping the nation’s energy consumption and car options. “[T]he D.C. Circuit has

avoided the merits of EPA’s interpretation for over 15

years. It has met each challenge to EPA’s waiver determination with a different jurisdictional barrier.”

Pet. Br. 3.

That liquid fuel producers will suffer harm if the

EPA waiver remains intact is obvious and predictable—California policy is intended to depress liquid fuel

consumption. The petitioners have presented a legal

“case or controversy,” and both sides have spent significant time and resources litigating that controversy. A

decision setting aside the waiver will mitigate the imminent future harm that liquid fuel producers anticipate. Therefore, Article III courts have not just the authority but the duty to rule on the legality of the EPA’s

waiver and California’s regulations.

This Court should reverse and hold that plaintiffs

like Diamond Alternative Energy and the other petitioners in this case have standing to sue. The courts

below misconstrued precedent to search for and find a

standing deficiency. The fuel producers are an obvious

and intended target of California’s onerous fuel regulations and their injury is redressable.

5

ARGUMENT

I.

LOWER COURTS STRAIN TO FIND STANDING DEFICIENCIES IN ORDER TO PREMATURELY DISMISS CASES AND CONTROVERSIES.

Standing doctrine provides plaintiffs a threshold to

meet to prevent “turning judges into advice columnists.” Uzuegbunam v. Preczewski, 592 U.S. 279, 296

(2021) (Roberts, C.J., dissenting). Unfortunately, in recent decades this doctrine has become increasingly

muddled and subject to manipulation by the government, leaving injured plaintiffs like Diamond Alternative Energy no legal remedy for their injuries.

Modern standing doctrine bears little resemblance

to the historical requirements derived from the Case

or Controversy Clause of Article III. U.S. CONST. art.

III, § 2, cl. 1. The original understanding of Article III

set out three conditions for standing: a plaintiff must

(1) “assert a legal right in a form prescribed by law,”

(2) not “deliberately manufacture a lawsuit,” and (3)

“present a legal question that called for interpretation

by an independent federal judge who was an expert in

federal law.” Robert J. Pushaw, Jr., The Court Continues to Confuse Standing: The Pitfalls of Faux Article

III “Originalism,” 31 GEO. MASON L. REV. 893, 895

(2024). For more than 150 years, the courts applied

these elements to determine standing. Id.

Today’s three-prong standing test—injury in fact,

causation, and redressability—originated as a pragmatic judicial reaction to prevent courts from being

overwhelmed by Americans’ challenges to New Deal

agencies’ numerous encroachments into private life

and commerce. See id. at 896; Lujan v. Defs. of

6

Wildlife, 504 U.S. 555, 560–61 (1992) (summarizing

the standing test). The test “was fashioned out of other

doctrinal materials largely through the conscious efforts of Justices Brandeis and Frankfurter.” Steven L.

Winter, The Metaphor of Standing and the Problem of

Self-Governance, 40 STAN. L. REV. 1371, 1374 (1988).

This Court only formalized the three prongs of the

modern standing test in the 1970s. See Pushaw, The

Court Continues to Confuse Standing, supra, at 897,

906; Ass’n of Data Processing Serv. Orgs. v. Camp, 397

U.S. 150, 152–54 (1970) (establishing the “injury-infact” requirement); Linda R.S. v. Richard D., 410 U.S.

614, 617–19 (1973) (introducing the “causation” and

“redressability” prongs).

To the extent the modern prongs lead to the same

outcomes as the original understanding of Article III,

they can be relatively innocuous. Unfortunately, however, lower courts have too often used the modern

prongs as opportunities to find standing deficiencies

and prematurely dismiss cases.3 Inquiries directed at

the single core question, whether a suit presents a

3 Some lower-court opinions have protested that strict barriers to

standing are compelled by the Constitution and that neither Congress nor the courts have discretion to lower them. These arguments are dubious considering the liberal standing requirements

that Congress has established in areas like Freedom of Information Act (FOIA) litigation. Courts freely acquiesce to Congress’s assertion that any citizen has a right to make FOIA requests for almost any reason, even simple curiosity. See Evan

Tsen Lee & Josephine Mason Ellis, The Standing Doctrine’s Dirty

Little Secret, 107 NW. U.L. REV. 169, 173 (2015); 5 U.S.C.

§ 552(a)(6)(E)(iii). No injury is required, and neither causation

nor redressability must be established to have standing to bring

an action under FOIA. If that is constitutional, then courts in

many other areas of the law have applied a far stricter test for

standing than the Constitution requires.

7

“case or controversy,” are too often tossed aside. Standing has increasingly become a tool for judicial abdication, as courts use standing to create procedural roadblocks for plaintiffs with genuine injuries. See Pushaw,

The Court Continues to Confuse Standing, supra, at

895.4 By erecting high thresholds for standing, courts

can dismiss complaints that do in fact raise a legal case

or controversy, leaving plaintiffs who have valid

claims without a remedy.

The use of standing doctrine to truncate litigation

has grown particularly in environmental and regulatory cases. See id. at 894. In these contexts, standing

requirements are often used to dismiss claims from industries or individuals who will suffer from government regulations but whose injuries are characterized

as indirect or speculative. Even when plaintiffs suffer

immediate and direct harm due to government regulations, they are still too often denied the opportunity to

have their claims heard. See id.

These overly strict applications of standing doctrine are not just inconsistent with the original meaning of the Constitution, they are also inconsistent with

this Court’s precedent. This Court’s decision in Department of Commerce v. New York makes plain that when

regulations will have a “predictable effect,” that effect

can establish redressability. 588 U.S. 752, 768 (2019).

The D.C. Circuit erred, then, in requiring plaintiffs to

4 The New Deal and Burger Courts used an early version of the

modern standing test to deny relief to plaintiffs challenging government power, first to block “businesses challenging progressive

legislation, then “to foreclose litigation by disadvantaged groups

attacking conservative statutes.” Tracey E. George & Robert J.

Pushaw Jr., How is Constitutional Law Made?, 100 MICH. L. REV.

1265, 1274–75 (2002).

8

somehow “prove” that vacatur would increase the

manufacture and sales of fuel-consuming vehicles.

This Court’s redressability standard permits plaintiffs

to point to the predictable and likely effects of a legal

remedy.

Properly applied, standing doctrine ensures that

courts adjudicate only real-world disputes and that

they do not issue advisory opinions. However, the D.C.

Circuit’s decision in this case illustrates that the doctrine is too often used as an arbitrary barrier for parties who have genuine grievances. California has been

explicit about its desire to reduce the use of fuel

through the passage of emissions regulations. See Advanced Clean Cars Program, CAL. AIR RES. BD. (last

visited Jan. 26, 2025).5 The primary purpose of these

regulations is to reduce fuel use in the state. While the

regulations bind vehicle manufacturers, those manufacturers are not the sole targets of California’s regulations. And the current regulations are just the beginning of a scheme to eliminate all gas-powered vehicles

and depress fuel consumption. Id. (“By 2035 all new

passenger cars, trucks and SUVs sold in California

will be zero emissions.”).

California’s regulations are designed to reduce

emissions from vehicles, which will, by necessity, reduce fuel consumption. EPA and California’s regulatory bodies have been explicit about the objective of the

regulations, and they defend them because of their belief in the close nexus between emissions and climate

change. As this Court said in Massachusetts v. EPA,

“EPA would presumably not bother with such efforts if

5 Available at https://tinyurl.com/4xtva7nf (last visited Jan. 26,

2025).

9

it thought emissions reductions would have no discernable impact on future global warming.” 549 U.S. 497,

526 (2007) (internal quotations omitted). The same

logic applies here.

Petitioners logically argue that strict emissions

rules will depress demand for their products, thus

harming their economic interests as a third party to

the EPA’s actions. That should be enough to show a

redressable injury.

CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the D.C. Circuit.

........................................... Respectfully submitted,

February 3, 2025

Thomas A. Berry

Counsel of Record

Brent Skorup

Christine Marsden

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org