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 AMICI CURIAE

TEXAS OIL & GAS ASSOCIATION, LOUISIANA

MID-CONTINENT OIL & GAS ASSOCIATION,

THE PETROLEUM ALLIANCE OF OKLAHOMA,

TEXAS INDEPENDENT PRODUCERS AND

ROYALTY OWNERS ASSOCIATION, AND

TEXAS ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONERS

JAMES K. VINES

Counsel of Record

SAMUEL P. FUNK

EVAN S. ROTHEY

COLE W. SCHOTT

SIMS|FUNK, PLC

3102 West End Ave., #1100

Nashville, TN 37203

(615) 292-9335

jvines@simsfunk.com

Counsel for Amici Curiae

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

Page

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

TABLE OF CONTENTS ............................................ ii

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

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF THE ARGUMENT ............................6

ARGUMENT ...............................................................6

CONCLUSION ..........................................................12

iii

TABLE OF AUTHORITIES

Cases

Energy Future Coal. v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ................................11

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) ..................................................9

Statutes

42 U.S.C. § 7507 ........................................................10

42 U.S.C. § 7543 ..........................................................6

Regulations

87 Fed. Reg. 14,332 (Mar. 14, 2022) ..................... 8, 10

87 Fed. Reg. 14,336 (Mar. 14, 2022) ...........................8

Other Authorities

California Air Resources Board, Staff Report: Initial

Statement of Reasons for Proposed Rulemaking,

Public Hearing to Consider the “LEV III”

Amendments to the California Greenhouse Gas and

Criteria Pollutant Exhaust Emission Standards

(Dec. 7, 2011), available at

https://www.regulations.gov/document/EPA-HQOAR-2021-0257-0013 ...............................................9

iv

Other Authorities—Continued

California Air Resources Board, States that have

Adopted California’s Vehicle Regulations (June

2024), https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-carsprogram/states-have-adopted-californias-vehicleregulations .............................................................10

Cal. Exec. Order N-79-20 (Sept. 23, 2020),

https://www.gov.ca.gov/wpcontent/uploads/2020/09 /9.23.20-EO-N-79-20Climate.pdf...............................................................9

Exec. Order No. 13,990, 3 C.F.R. § 13990 (2022) .......7

Exec. Order No. 14,037, 3 C.F.R. § 14037 (2022) .......7

Press Release, Gavin Newsom, Governor, State of

California, Governor Newsom Statement on Biden

Administration’s Restoration of California’s Clean

Car Waiver (March 9, 2022),

https://www.gov.ca.gov/2022/03/09/governornewsom-statement-on-biden-administrationsrestoration-of-californias-clean-car-waiver/............8

Press Release, U.S. Environmental Protection

Agency, EPA Reconsiders Previous

Administration’s Withdrawal of California’s

Waiver to Enforce Greenhouse Gas Standards for

Cars and Light Trucks (April 26, 2021),

https://www.epa.gov/newsreleases/epa-reconsidersprevious-administrations-withdrawal-californiaswaiver-enforce ..........................................................7

1

INTEREST OF AMICI CURIAE1

Amici are statewide trade associations from Texas,

Oklahoma, and Louisiana, representing the oil and

gas industry and related manufacturing industries in

their respective states. These industries are the

foundational economic drivers for Texas, Oklahoma,

and Louisiana. The economies and public welfare of

these states depend on the immediate and long-term

future of these industries. Amici, and the industry

members they represent, are squarely in the

crosshairs of the previous administration’s attack on

fossil fuels in the transportation sector and other key

economic sectors. EPA’s preemption waiver, here, is a

critical step in the previous administration’s multiagency effort to cripple the oil and gas industry.

1. The Texas Oil & Gas Association (TXOGA)

represents every facet of the Texas oil and gas

industry, including small independent businesses and

major producers. Collectively, TXOGA’s membership

produces roughly 90% of Texas’ crude oil and natural

gas and operates the vast majority of the state’s

refineries and pipelines. In fiscal year 2024 alone, the

Texas oil and natural gas industry supported over

490,000 direct jobs and paid $27.3 billion in state and

Pursuant to Supreme Court Rule 37.6, Amici state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from Amici, their members, and

their counsel, made any monetary contribution toward the

preparation or submission of this brief.

1

2

local taxes and state royalties. In turn, Texas uses

state oil and gas revenues to fund public education,

infrastructure, first responders, and economic

stabilization programs. TXOGA and each of its

members are directly impacted by EPA’s actions in

this particular rulemaking.2 For these reasons, all of

Texas Oil & Gas Association’s member companies and

the dependent sectors of Texas’ economy are subject

to profound adverse consequences from the regulatory

actions addressed in the petition.

2. Texas Independent Producers and Royalty

Owners Association (TIPRO) is one of the country’s

largest oil-and-gas trade associations. TIPRO’s nearly

3,000 members—from small family-owned operations

to large publicly traded oil and gas producers and

royalty owners of all sizes—represent Texas’s

foundational economic driver, the oil and gas

industry. In 2023, Texas supplied 23% of all oil and

gas jobs nationwide and provided highest oil and gas

payroll in the country in 2023, totaling $59 billion.

Texas produced over 1.9 billion barrels of oil and 12.2

trillion cubic feet of natural gas in 2023, both new

records. And Texas’s oil and natural gas industry

purchased American goods and services to the tune of

$288 billion, illustrating how deeply the oil and gas

industry is woven into the fabric of the American

2 Texas Oil & Gas Association, 2023 Annual Energy & Economic

Impact Report (Jan. 30, 2024), https://www.txoga.org/2023eeir/

3

economy.3 For these reasons, all of Texas Independent

Producers and Royalty Owners Association’s member

companies and individual members, and the

dependent sectors of Texas’ economy, are subject to

profound adverse consequences from the regulatory

actions addressed in the petition.

3. Texas Association of Manufacturers (TAM)

actively represents the interests of more than 600

member companies. Texan manufacturers account for

more than 11.2% of the total output in Texas—$269

billion in 2022—and employ almost 925,000 Texans in

jobs that pay more than $105,699 annually on

average. And for each manufacturing job, five

additional jobs are created in a community. For more

than twenty years, Texas has remained the number

one exporting state in the United States for

manufactured goods. As noted by the U.S.

Department of Energy, “refined products made from

oil & natural gas make the manufacturing of over

6000 everyday products and high-tech devices

possible.” These products include everything from

contact lenses and hearing aids to cell phones and

laptops.4 For these reasons, all of Texas Association of

3 Texas Independent Producers and Royalty Owners Association,

2024 State of Energy Report 3–4 (2024), https://tipro.org/tiproenergy-report-2024/.

4 Texas Association of Manufacturers, Manufacturing Matters,

https://manufacturetexas.org/manufacturing-matters; National

Association of Manufacturers, Manufacturing in the United

States: Texas, https://nam.org/manufacturing-in-the-united-

4

Manufacturer’s member companies and the

dependent sectors of Texas’ economy are subject to

profound adverse consequences from the regulatory

actions addressed in the petition.

4. Louisiana

Mid-Continent

Oil

&

Gas

Association (LMOGA) represents the oil and gas

industry in the second-largest oil producing state and

fourth-largest gas producing state. In 2019, Louisiana

supported the production of 738 million barrels of

crude oil and liquid condensate, 3.81 trillion cubic feet

of dry (or pipeline quality) natural gas, and 102.4

million barrels of natural gas plant liquids—a firstpoint-of-sale total value of $55.5 billion. The

Louisiana oil and gas industry provided $73.0 billion

dollars of direct, indirect, and related state income.

And state and local tax revenues from the industry

provided $4.5 billion to the state economy throughout

the supply chain. A total of 249,800 private sector

employees received wages or salaries in 2019

supported by oil and gas activity.5 For these reasons,

all of Louisiana Mid-Continent Oil & Gas

Association’s member companies and the dependent

states/regions/texas/; U.S. Department of Energy, Products

Made

from

Oil

and

Natural

Gas

(Nov.

2019),

https://www.energy.gov/sites/prod/files/2019/11/f68/Products%2

0Made%20From%20Oil%20and%20Natural%20Gas%20Infogra

phic.pdf.

5 ICF International, Inc., The Economic Impact of the Oil and

Natural Gas Industry in Louisiana (Oct., 5, 2020),

https://www.lmoga.com/assets/uploads/documents/LMOGA-ICFLouisiana-Economic-Impact-Report-10.2020.pdf.

5

sectors of Louisiana’s economy are subject to profound

adverse consequences from the regulatory actions

addressed in the petition.

5. The Petroleum Alliance of Oklahoma (OK

Petro) represents the oil and gas industry in the

Nation’s fourth-largest oil producing state and fifthlargest gas producing state. In 2022, Oklahoma’s oil

and gas industry produced more than 1.8 billion

barrels in proved crude oil reserves and more than 36

trillion cubic feet of natural gas reserves, directly

contributing $55.7 billion to state GDP in 2023. In

turn, Oklahoma’s oil and gas industry provided $30.7

billion in income to Oklahomans, and its total impact

accounted for 22% of statewide economic activity. The

oil and natural gas industry is Oklahoma’s largest

private-sector employer and is its largest taxpayer,

contributing a record $2.9 billion in total taxes in

2023. And beyond taxes, state royalty payments

exceeded $1.9 billion. The oil and gas industry

provides Oklahoma’s only major source of earmarked

funding for education and county roads and bridges,

totaling $288 million and $177 million, respectively,

in 2023.6 For these reasons, all of The Petroleum

U.S. Energy Information Administration, Oklahoma State

Energy Profile (July 18, 2024), https://www.eia.gov/state/print.

php?sid=OK; Oklahoma Energy Resources Board, Oklahoma Oil

& Natural Gas: Economic Impact (2023), https://oerb.com/

ECONOMIC-IMPACT/; OERB, Oklahoma Oil & Natural Gas:

2023 Economic Impact Update (Mar. 2024), https://oerb.com/wpcontent/uploads/2024/03/Economic-Impact-Full-Report.pdf;

6

6

Alliance of Oklahoma’s member companies and the

dependent sectors of Oklahoma’s economy are subject

to profound adverse consequences from the regulatory

actions addressed in the petition.

SUMMARY OF THE ARGUMENT

Amici, representatives of the oil and gas industry

in Texas, Oklahoma, and Louisiana (three of the

largest liquid-fuel-producing states), write briefly to

(1) expand on the context for EPA’s grant of a

preemption waiver under Section 209(b) of the Clean

Air Act to California’s “Advanced Clean Cars I” (ACC)

program and (2) highlight the waiver’s impact on

producers, refiners, and sellers of liquid fuel and the

raw materials used to make them.

The purpose of the preemption waiver is to

substantially reduce the use of liquid fuels in vehicles.

Taking a commonsense approach, those in the

targeted liquid fuel industry have standing to

challenge the waiver.

ARGUMENT

Targeting the oil and gas industry, EPA has

deployed a platoon of rulemakings to force a change

from fossil fuels and other liquid-fuel propulsion to

electric vehicles. See, e.g., Exec. Order No. 13,990, 3

Mark C. Snead et al., Oklahoma’s Oil and Gas Economy (2022),

http://oerb.com/wp-content/uploads/2022/02/RegTrk-OK-OilGas-Final-Draft-20220201.pdf.

7

C.F.R. § 13990 (2022); Exec. Order No. 14,037, 3

C.F.R. § 14037 (2022).7 This particular rulemaking—

EPA’s about-face grant of a preemption waiver for the

ACC program—is one such attack on the industry.

The goal of the ACC program (and EPA’s aim in

applying a preemption waiver) is to progressively

force elimination of fossil and other liquid fuels in

vehicles. Leaders of both EPA and California have

said as much. Former EPA Administrator Michael

Regan, citing his belief in “California’s long-standing

statutory authority to lead” (seemingly an admission

of EPA’s abdication to CARB), proceeded to roll back

EPA’s prior denial of a preemption waiver at

President Biden’s direction. Press Release, U.S.

Environmental Protection Agency, EPA Reconsiders

Previous Administration’s Withdrawal of California’s

Waiver to Enforce Greenhouse Gas Standards for Cars

and

Light

Trucks

(April

26,

2021),

https://www.epa.gov/newsreleases/epa-reconsidersprevious-administrations-withdrawal-californiaswaiver-enforce (emphasis added). EPA has continued

to note that the California Air Resources Board’s

As part of the coordinated agency strategy, EPA and the

National Highway Traffic Safety Administration have also taken

other challenged agency actions, which are currently awaiting

decision by the D.C. Circuit. See Texas v. EPA, No. 22-1031 (filed

Feb. 28, 2022); Nat. Res. Def. Council v. NHTSA, No. 22-1080

(filed May 11, 2022); see also Kentucky v. EPA, No. 24-1087 (filed

April 18, 2024); In re MCP No. 189 Corp. Avg. Fuel Econ

(NHTSA-2023-0022), No. 24-7001 (consolidated in the 6th Cir.

July 12, 2024).

7

8

(CARB) 2012 waiver request attributed certain

“benefits” of its ACC program “not to vehicle

emissions reductions specifically, but to increased

electricity and hydrogen use that would be more than

offset by decreased gasoline production and refinery

emissions.” 87 Fed. Reg. 14,332, 14,336 (Mar. 14,

2022) (emphasis added) (citing CARB Request for

Waiver of Preemption for Low Emission Vehicle and

Zero Emission Vehicle Regulations (“Advance Clean

Car Program”) (2012 Waiver Request), EPA-HQOAR-2012-0562-0004, 1, 6 (Aug. 30, 2012)). Put

differently, one of the program’s express goals is for

“net upstream emissions” to be “reduced through the

increased use of electricity and concomitant

reductions in fuel production.” Id. (emphasis added)

(citing 2012 Waiver Request, at 15–16).

California officials have likewise touted the ACC

program’s intended goal—“to end” the country’s

“reliance on fossil fuels” and to “make a zero-emission

future a reality for all Americans”—since the

program’s inception. Press Release, Gavin Newsom,

Governor, State of California, Governor Newsom

Statement on Biden Administration’s Restoration of

California’s Clean Car Waiver (March 9, 2022),

https://www.gov.ca.gov/2022/03/09/governor-newsomstatement-on-biden-administrations-restoration-ofcalifornias-clean-car-waiver/

(emphasis

added).

Directing CARB in 2020 to develop progeny programs

to the ACC program, Governor Gavin Newsom

9

reiterated California’s larger effort to “decarbonize[]”

the transportation sector and “transition[] away from

fossil fuels.” Cal. Exec. Order N-79-20 (Sept. 23, 2020),

https://www.gov.ca.gov/wp-content/uploads/2020/09

/9.23.20-EO-N-79-20-Climate.pdf.

In short, the very purpose of EPA’s grant of a

preemption waiver was to support the overarching

goal of forcing nationwide conversion from liquid-fuelpowered vehicles to electric vehicles.

Consistent with that aim, CARB correctly

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.” California Air Resources

Board, Staff Report: Initial Statement of Reasons for

Proposed Rulemaking, Public Hearing to Consider the

“LEV III” Amendments to the California Greenhouse

Gas and Criteria Pollutant Exhaust Emission

Standards 201 (Dec. 7, 2011), available at

https://www.regulations.gov/document/EPA-HQOAR-2021-0257-0013 (emphasis added). In fact,

CARB conceded that the ACC program would cause a

likely $1 billion hit to the oil and gas industry in 2020

increasing to $10 billion in 2030. Id. While these

estimates were orders of magnitude below the ACC

program’s actual impact, see J.A. 120–184, CARB

itself noted Petitioners’ “classic pocketbook injury” to

10

the tune of billions of dollars. Tyler v. Hennepin Cnty.,

598 U.S. 631, 636 (2023).

EPA’s preemption waiver for the ACC program

reaches

well

beyond

California’s

borders.

Concurrently with reinstating the preemption waiver,

EPA withdrew an interpretation to allow Section 177

“opt-in” states to adopt CARB’s mandates. 87 Fed.

Reg. 14,332 (Mar. 14, 2022); see 42 U.S.C. § 7507.

Seventeen states (as well as the District of Columbia)

initially adopted CARB’s standards, representing

approximately 40% of the new car market and the

commensurate liquid fuel products associated with

those new vehicles. See id.; California Air Resources

Board, States that have Adopted California’s Vehicle

Regulations (June 2024), https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-cars-program/stateshave-adopted-californias-vehicle-regulations.

This

widespread adoption continues to pose an existential

risk to liquid fuel producers in Texas, Oklahoma, and

Louisiana. In turn, the ACC program and EPA’s

preemption waiver threaten the livelihoods and

wellbeing of millions of hardworking Americans and

their families well beyond the borders of California.

Contrary to the lower court’s conclusion,

Petitioners (entities and associations representing

interests at all levels of the liquid fuel supply chain)

are not ancillary to EPA’s final agency action. Rather,

Petitioners (and Amici) are in its crosshairs. To be

sure, automakers are also impacted by the

11

rulemaking. But automakers are simply the device

the agencies are using to directly undermine and

eventually eliminate the Petitioners’ industries and

livelihoods. Agencies do not erect a redressability

barrier for legal challenges from targeted industries

simply because a regulation facially regulates an

adjacent industry. For redressability analysis,

“remov[ing] a regulatory hurdle” is enough. See

Energy Future Coal. v. EPA, 793 F.3d 141, 144 (D.C.

Cir. 2015) (Kavanaugh, J.).

There can be no question that the producers,

refiners, and sellers of these fuels and the raw

materials used to make them have standing to

challenge a rule aimed directly at them. A

commonsense approach leads to one conclusion:

Petitioners have standing to challenge an agency

action that targets and injures them.

12

CONCLUSION

Amici urge this Court to reverse the judgment

below.

Respectfully submitted,

JAMES K. VINES

Counsel of Record

SAMUEL P. FUNK

EVAN S. ROTHEY

COLE W. SCHOTT

SIMS|FUNK, PLC

3102 West End Ave., #1100

Nashville, TN 37203

(615) 292-9335

jvines@simsfunk.com

Counsel for Amici Curiae Texas Oil & Gas Association,

Louisiana Mid-Continent Oil & Gas Association, The

Petroleum Alliance of Oklahoma, Texas Independent

Producers and Royalty Owners Association, and Texas

Association of Manufacturers

FEBRUARY 3, 2025