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.,

v.

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

________________

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

________________

BRIEF FOR AMICUS CURIAE AMERICAN

PETROLEUM INSTITUTE IN SUPPORT OF

PETITIONERS

________________

PAUL D. CLEMENT

Counsel of Record

C. HARKER RHODES IV

NICHOLAS A. AQUART*

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

*Supervised by principals of the firm

who are members of the Virginia bar

Counsel for Amicus Curiae

February 3, 2024

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 4

I.

The Panel Erred In Holding That Petitioners

Lacked Standing .................................................. 4

A. Petitioners Have Standing ........................... 5

B. The D.C. Circuit’s Contrary Decision

Defies This Court’s Precedent and

Common Sense ............................................. 9

II. The Panel’s Erroneous Approach To Standing

Would Create Unnecessary Litigation

Burdens .............................................................. 16

CONCLUSION ......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Slater,

528 U.S. 216 (2000)................................................ 14

Am. Petroleum Inst. v. EPA,

No. 24-1196

(D.C. Cir. docketed June 13, 2024) ....................... 17

Am. Petroleum Inst. v. EPA,

No. 24-1208

(D.C. Cir. docketed June 18, 2024) ....................... 17

Bennett v. Spear,

520 U.S. 154 (1997)...................................... 6, 10, 11

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)................................................ 12

Corner Post, Inc.

v. Bd. of Governors of the Fed. Rsrv. Sys.,

603 U.S. 799 (2024)...................... 5, 6, 12, 13, 16, 17

Davis v. FEC,

554 U.S. 724 (2008)................................................ 14

Dep’t of Com. v. New York,

588 U.S. 752 (2019)............................................ 7, 12

Energy Future Coal. v. EPA,

793 F.3d 141 (D.C. Cir. 2015) .............................. 6, 7

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024).................................................. 7

In re Nat’l Highway Traffic Safety Admin.,

No. 24-7001

(6th Cir. docketed July 18, 2024) .......................... 17

Larson v. Valente,

456 U.S. 228 (1982)............................................ 7, 15

iii

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................ 5, 6, 7, 9, 11

Massachusetts v. EPA,

549 U.S. 497 (2007)...................................... 7, 13, 15

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

590 U.S. 538 (2020)................................................ 14

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021).................................................. 7

Regulations

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

89 Fed. Reg. 27,842 (Apr. 18, 2024) ................... 17, 18

Other Authority

State of California, Advanced Clean Cars

Waiver Request (May 2012),

https://tinyurl.com/3ca8mf7s ................................... 8

STATEMENT OF INTEREST 1

The American Petroleum Institute (“API”) is the

national trade association for America’s oil and

natural gas industry. API has hundreds of members

involved in all segments of the industry, including

companies that produce, process, and distribute oil

and natural gas products, as well as companies that

support the oil and natural gas sector. With over 30

active chapters, API harnesses its members’

experience to research and advocate for sound

approaches to the production and supply of energy

resources. API submits this brief to underscore the

flaws in the D.C. Circuit’s standing decision below,

which departs from settled law, threatens to create

unnecessary hurdles for a wide array of regulatory

challenges, and warrants reversal.

SUMMARY OF THE ARGUMENT

Petitioners represent industry participants that

produce and sell liquid fuel, and the raw materials

used to make them. They challenge EPA’s decision to

reverse

course

and

approve

California’s

unprecedented efforts to regulate global climate

change by forcing manufacturers to produce more

electric vehicles, thereby decreasing demand for

petitioners’ products.

But despite the obvious

economic impact that petitioners faced (and continue

to face) from that EPA decision, the D.C. Circuit

deflected petitioners’ challenge on standing grounds

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

without ever reaching its merits. That decision is

plainly wrong and plainly consequential. Article III’s

standing requirements are straightforward, and

petitioners satisfy each element here—which is why

the federal government did not even initially

challenge petitioners’ standing below. EPA’s decision

to waive federal preemption of California’s heightened

vehicle emissions standards causes obvious and

unmistakable harm to petitioners in the fuel industry,

even though the standards formally apply to

automakers rather than the fuel industry itself. If the

EPA imposed a no-muffler mandate on vehicle

manufacturers, it would be beyond obvious that

muffler manufacturers would have standing to sue.

The situation here is no different.

By forcing

automakers to produce more electric vehicles, the

standards necessarily reduce sales of fuel and the raw

materials used to make that fuel. Indeed, that effect

on fuel consumption and the fuel industry is the whole

point of the rule. And both basic economics and the

government’s own administrative findings show that

vacating EPA’s waiver would provide at least some

redress for the fuel industry.

The decision below nevertheless concluded that

petitioners had not shown redressability because they

had not submitted evidence showing precisely what

effect vacating the waiver would have on automakers’

manufacturing and pricing decisions. That misguided

conclusion overcomplicates the obvious and

contravenes settled law.

When a government

regulation is imposed with a stated intent to eliminate

use of an input or phase out consumption of a

particular industry’s products, it does not take expert

evidence or declarations from those who are more

3

directly regulated but whose livelihoods are less

directly endangered to show that vacating the

regulation will redress the harm that it would

otherwise impose on the targeted industry. The

muffler industry would plainly benefit from repeal of

a no-muffler mandate, and petitioners would just as

obviously benefit from the repeal of the regulation

here. That is why other courts have routinely found

Article III satisfied in cases like this one without

demanding that plaintiffs produce the kind of explicit

evidence the panel below considered necessary here.

Put simply, the fact that a regulation has been

designed to produce a particular effect should

normally be sufficient to show that the likely result of

vacating that regulation will be to reduce that effect,

which is all that redressability requires.

The

possibility that the government regulation is actually

unnecessary to accomplish the government’s intended

result is sufficiently remote that it should not be a

challenger’s burden to negate. Moreover, to the extent

the D.C. Circuit was suggesting that even deeply

flawed regulations may continue to distort the market

even after invalidation, that is hardly a reason to

make it harder for injured parties to petition for

review and to do so promptly without retaining

experts to prove the obvious. In reality, it is a fair

assumption that a government regulation will at least

minimally advance its intended effect, and an equally

fair assumption that vacating the rule will frustrate

the government’s efforts and at least partially redress

the injury to those who would otherwise be harmed by

the regulation’s intended effect. By demanding more,

the decision below conflicts both with this Court’s

precedent and with decisions from other circuits.

4

The decision below also threatens to create

unnecessary hazards for future challenges to agency

action. At best, it may drive parties to hire

redressability experts whose testimony should be

unnecessary, and encourage burdensome litigation of

threshold redressability issues that should be

straightforward. And at worst, the decision below may

even in some cases entirely prevent judicial review of

regulations that by their terms apply only to certain

parties but whose effects fall heavily on others.

Regulatory challenges are routinely brought by

parties that are substantially affected by agency

action even though they are not themselves formally

regulated by that action, and redressability in those

challenges should normally speak for itself. But if the

decision below stands, it will create perverse

incentives for proponents of regulatory actions to

contest redressability even where redressability is just

the flip side of what the government purports to

accomplish with its regulation—which will in turn

encourage litigants to file unnecessary affidavits, and

increase the cost and burden of litigation for all

involved. This Court should reverse.

ARGUMENT

I.

The Panel Erred In Holding That Petitioners

Lacked Standing.

The standing decision below flouts both common

sense and well-settled law, creating unwarranted

hurdles for countless “unregulated but adversely

affected parties who traditionally have brought, and

regularly still bring,” challenges to agency rules that

may have a significant and concrete impact on their

interests even if those rules do not formally regulate

5

their conduct. Corner Post, Inc. v. Bd. of Governors of

the Fed. Rsrv. Sys., 603 U.S. 799, 827 (2024)

(Kavanaugh, J., concurring) (emphasis omitted). This

Court should reverse the D.C. Circuit’s erroneous

decision and end the misguided threat that it poses to

future challenges to agency rules that achieve their

objectives by imposing a regulation on party A that

directly (and intentionally) harms party B. That kind

of regulatory indirection may mean both parties can

sue, but it does not mean that the agency does not

have to answer for directly and intentionally harming

party B.

A. Petitioners Have Standing.

1. To establish Article III standing, a party

invoking federal jurisdiction must show an “injury in

fact,” a “causal connection between the injury and the

conduct complained of,” and that “the injury will be

redressed by a favorable decision.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992). The third

element, redressability, does not usually present a

serious ground for dispute in regulatory challenges. If

a regulation is to have any effect vis-à-vis the

petitioner, then vacating that rule will provide the

petitioner some relief. It is generally that simple.

When a plaintiff is itself regulated by a challenged

agency action, “there is ordinarily little question” that

a decision preventing or vacating that action will

redress the plaintiff’s injury. Id. at 561-62.

As then-Judge Kavanaugh observed a decade ago,

that is equally true when an agency action formally

regulates a third party, but eliminating it “would

remove a regulatory hurdle” to the challenger’s

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

6

144 (D.C. Cir. 2015). That was the precise scenario

presented in Energy Future Coalition, where (as here)

fuel producers challenged an EPA regulation that was

“technically directed at vehicle manufacturers” but

whose effect was to “prohibit[] or impede[]” the use of

one of the challengers’ products. Id. In that scenario,

the challengers were properly considered “an object of

the action (or forgone action) at issue,” and so there

was “‘little question’” that they had injuries that would

be redressed by vacating the regulation. Id. (quoting

Lujan, 504 U.S. at 561-62); see also Bennett v. Spear,

520 U.S. 154, 169 (1997) (recognizing that standing

can arise from an “injury produced by [the]

determinative or coercive effect” of the challenged

regulation “upon the action of someone else”); cf.

Corner Post, 603 U.S. at 826 (Kavanaugh, J.,

concurring) (recognizing that a “typical APA suit” will

“often” involve a plaintiff challenging “an allegedly

unlawful agency rule that regulates others but also

has adverse downstream effects on the plaintiff”).

The rule could hardly be otherwise. Putting a nomuffler mandate on vehicle manufacturers might

delight the vehicle manufacturers if the replacement

technology involves higher margins. But the same nomuffler mandate could crush the muffler industry.

Declaring that the latter cannot sue because the

regulation operates more directly on the former makes

zero sense.

More generally, in establishing redressability, a

petitioner can rest on “the predictable effect of

Government action on the decisions of third parties,”

without having to make any specific evidentiary

showing to substantiate those predictable effects.

7

Dep’t of Com. v. New York, 588 U.S. 752, 768 (2019);

FDA v. All. for Hippocratic Med., 602 U.S. 367, 384,

387 (2024) (highlighting “variety of familiar

circumstances where government regulation of a

third-party” supports standing for “unregulated

plaintiff[,]” including where a regulation causes

natural “downstream or upstream economic injuries to

others in the chain”). A plaintiff likewise need not

show that “a favorable decision will relieve his every

injury.” Larson v. Valente, 456 U.S. 228, 243 n.15

(1982). Instead, it is enough if prevailing will “slow or

reduce” the relevant harm, Massachusetts v. EPA, 549

U.S. 497, 525 (2007), even if by as little as “one dollar,”

Uzuegbunam v. Preczewski, 592 U.S. 279, 292 (2021).

As long as some degree of redress is “‘likely’ as opposed

to merely ‘speculative’” from a favorable judgment,

Article III redressability is satisfied. Lujan, 504 U.S.

at 561.

2. Under that settled precedent, the standing

inquiry in this case is straightforward.

The

challenged EPA waiver empowers California to

impose standards that require automakers to produce

and deliver for sale vehicle fleets that consume less

liquid fuel.

The “predictable effect” of that

regulation—and indeed, its explicitly intended

effect—is to reduce the demand for petitioners’

products. Dep’t of Com., 588 U.S. at 768. By the same

token, vacating the waiver “would remove a regulatory

hurdle” to petitioners’ future sales, making clear that

petitioners’ injury “is redressable” even though they

are not the direct object of the challenged agency

action. Energy Future Coal., 793 F.3d at 144-45; see

Lujan, 504 U.S. at 561-62.

8

California’s own statements demonstrate the

point. After all, California has already determined

that its standards would lead to “reductions in fuel

production,” 87 Fed. Reg. 14,332, 14,364 (Mar. 14,

2022) (quoting California’s 2012 Waiver Request,

EPA-HQ-OAR-2012-0562-0004, at 15-16), and

acknowledged that the “oil and gas industry” would be

among those “most adversely affected” by the new

standards and their resulting “substantial reductions

in demand for gasoline,” C.A.App.801; see also id. (“As

the directly regulated automotive manufacturing

sector currently has a limited presence in California,

indirect effects on affiliated business are likely to be of

greater interest.”); State of California, Advanced

Clean Cars Waiver Request 7-9 (May 2012),

https://tinyurl.com/3ca8mf7s (noting that electric

vehicles can “dramatically reduce petroleum

consumption”). The California Air Resources Board’s

declarant below likewise recognized that without the

standards, “it is reasonable to expect that there would

be … additional gasoline-fueled vehicles produced and

sold during these model years to meet the market’s

demand for vehicles,” C.A. States Interv. Mot. Add. 11,

with an attendant increase in demand for liquid fuel.

California’s representations thus demonstrate that

the state’s standards were designed to reduce the

consumption of the fuel products that petitioners

produce and sell, and that petitioners would benefit

from increased sales absent those standards. Nothing

more is required to establish redressability.

In any event, petitioners submitted over a dozen

declarations with their opening brief detailing how

California’s standards would artificially shrink the

market for petitioners’ products, reduce their

9

revenues, and cause significant harm. C.A. Priv. Pet.

Br. Add. 11-76. Those declarations highlighted, for

example,

California’s

“estimated

‘substantial

reductions in demand for gasoline—exceeding $1

billion beginning in 2020 and increasing to over $10

billion in 2030,’” and the “demand destruction” that

would likely harm petitioners if EPA’s waiver was left

in place. E.g., id. at 17, 25, 29-30, 36-38, 67. To say

that more is required blinks reality and ignores settled

principles of Article III standing.

B. The D.C. Circuit’s Contrary Decision

Defies This Court’s Precedent and

Common Sense.

1. The D.C. Circuit’s contrary analysis cannot be

squared with this Court’s precedent and common

sense. The panel acknowledged that petitioners’

injuries would be redressed “if automobile

manufacturers responded to vacatur of the waiver by

producing [or] selling fewer non-conventional [i.e.,

electric] vehicles or by altering the prices of their

vehicles such that fewer non-conventional vehicles—

and more conventional vehicles—were sold.” Pet.

App. 22a. But instead of recognizing the obvious—

that it is at least “likely,” Lujan, 504 U.S. at 561, that

a waiver designed to allow California to require

automakers to produce more electric vehicles would in

fact operate as intended, and that vacating that

mandate would at least somewhat impede that

intended result—the panel insisted on “record

evidence” that “manufacturers would, in fact, change

course with respect to the relevant model years if this

Court were to vacate the waiver.” Pet. App. 23a.

Likewise, despite admitting that manufacturers

10

“could change their prices” in response to vacatur of

the waiver, “which may redress Petitioners’ injuries

because pricing could affect the mix of conventional

and electric vehicles purchased,” the panel refused to

credit that basic economic principle, asserting instead

that petitioners needed explicit “evidence that

manufacturers would change their prices.” Pet. App.

24a.

That demand for specific “record evidence” to

prove the obvious—i.e., that government coercion is

not gratuitous, such that eliminating coercive

regulations is likely to lead to less of the coerced

behavior, Pet. App. 23a—cannot be squared with this

Court’s precedent. In Bennett, for example, this Court

considered a challenge by a group of ranchers and

irrigation districts to a Biological Opinion issued by

the U.S. Fish and Wildlife Service under the

Endangered Species Act. 520 U.S. at 158-59. That

Biological Opinion concluded that unless the Bureau

of Reclamation made changes to the operation of the

Klamath Project—a series of lakes, rivers, dams, and

irrigation canals in northern California and southern

Oregon from which the petitioners received water—it

would jeopardize the continued existence of two

endangered species of fish. Id. The government

challenged the petitioners’ Article III standing,

asserting that vacating the Biological Opinion would

not necessarily redress the petitioners’ injury because

the Bureau of Reclamation “retain[ed] ultimate

responsibility for determining” how to operate the

Klamath Project, and could decide to allocate less

water to petitioners even absent the Biological

Opinion. Id. at 168.

11

In a unanimous opinion by Justice Scalia, this

Court rejected the government’s argument. As the

Court explained, while redressability may be lacking

if a plaintiff’s injury “is ‘the result of the independent

action of some third party not before the court,’” that

“does not exclude injury produced by determinative or

coercive effect upon the action of someone else.” Id. at

169 (brackets omitted) (quoting Lujan, 504 U.S. at

560-61). Thus, it did not matter that the Bureau of

Reclamation had the power to impose the same water

restrictions independent of the Biological Opinion.

What mattered was that the Biological Opinion “has a

powerful coercive effect” on the Bureau, such that

vacating it meant that petitioners’ injury “will ‘likely’

be redressed—i.e., the Bureau will not impose [the

same] water level restrictions—if the Biological

Opinion” is set aside. Id. at 169, 171.

The same logic applies here: Given the “powerful

coercive effect” of the California standards, and their

express intent of reducing liquid fuel consumption, it

is “not difficult to conclude” that vacating the waiver

is “likely” to affect the behavior of the regulated

automakers and redress petitioners’ injury. Id. at 169,

170-71. Petitioners here should not be required to

submit additional explicit evidence to prove that

straightforward point, any more than the Bennett

petitioners would have been required at summary

judgment to submit an affidavit from the Bureau of

Reclamation declaring that it would in fact change its

water level restrictions if the Biological Opinion were

vacated. See id. at 170-71.

This Court’s decision in Department of Commerce

further confirms the point. The plaintiffs there—a

12

variety of government and non-government

organizations—challenged the government’s decision

to include a question about citizenship on the

decennial census. 588 U.S. at 763-64. That decision

did not regulate the plaintiffs directly, but the

plaintiffs contended that they were injured because

including that question would predictably lead

noncitizen households to respond to the census at

lower rates than other groups. Id. at 766-67. This

Court—again unanimously—found that theory

sufficient to support Article III standing, rejecting the

government’s argument that any harm to the

plaintiffs depended on “speculation about the

decisions of independent actors.” Id. at 768 (quoting

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414

(2013)).

Again, the Court concluded that the

“predictable effect of Government action on the

decisions of third parties” was sufficient to show

standing, without requiring explicit statements from

those third parties themselves describing precisely

how they would respond to a favorable judicial

decision. Id. The D.C. Circuit’s decision to require

more here cannot be reconciled with either Bennett or

Department of Commerce.

In short, it has been “long understood” that

agency action can be challenged “in suits by

unregulated plaintiffs who are adversely affected by

an agency’s regulation of others,” Corner Post, 603

U.S. at 826 (Kavanaugh, J., concurring)—and yet this

Court has never required those adversely affected

plaintiffs to submit explicit testimony from the

directly regulated third parties detailing their likely

response to a favorable judgment in order to establish

redressability. That is for good reason. After all, if

13

those third parties were going to do what the agency

regulation required whether or not that regulation

existed, the agency “would presumably not bother”

promulgating the regulation at all. Massachusetts,

549 U.S. at 526.

Finally, to the extent the D.C. Circuit’s demand

for additional evidence is fueled by a sense that

regulatory harm may be harder to redress in some

cases, because the nature of certain industries means

that an invalid regulation once promulgated can

continue to have repercussions even after it is

invalidated, that is hardly a reason to make it harder

to bring prompt challenges. The government should

not be rewarded for structuring its regulations in ways

that make it harder to reverse invalid agency actions.

Finally, there is a reason why “entire classes of

administrative litigation … have traditionally been

brought by unregulated parties,” Corner Post, 603 U.S.

at 833 (Kavanaugh, J., concurring): The directly

regulated parties in those cases have their own

reasons for not bringing the litigation themselves,

ranging from, perhaps, a clear-eyed recognition that

the real costs of the regulation fall elsewhere to agency

capture or fear of retaliation after getting crosswise

with their regulator. The same considerations that

may cause those directly regulated parties to forgo

bringing their own challenge will also make them

reluctant to cooperate with the unregulated parties

who do wish to challenge the government’s action,

even when it comes to something as simple as

confirming that vacating a rule designed to increase

the production and delivery for sale of electric vehicles

14

will likely result in the production of fewer electric

vehicles.

2. The panel below believed this case was special

because (in its view) the “relatively short duration” of

the waiver at issue, which applies through model year

2025, suggested that the directly regulated parties

might already be locked into their production

decisions. Pet. App. 22a. But EPA has now conceded

that its waiver “does not expire after model-year 2025”

and will “remain in force thereafter.” Fed. Resp. BIO.

12-13. Regardless, the D.C. Circuit’s submission is at

most a (misplaced) mootness concern for which the

government bears a heavy burden of proof, not an

additional redressability hurdle that petitioners must

surmount. See Adarand Constructors, Inc. v. Slater,

528 U.S. 216, 221-22 (2000) (reversing the Tenth

Circuit for confusing “mootness with standing,” and

placing “the burden of proof on the wrong party”). The

standing inquiry “focuse[s] on whether the party

invoking jurisdiction had the requisite stake in the

outcome when the suit was filed,” not when the court

eventually renders its decision. Davis v. FEC, 554

U.S. 724, 734 (2008) (emphasis added); see Pet. App.

25a.

And at the time petitioners filed their

challenge—within 60 days of EPA’s March 2022 order,

see Pet. App. 14a-15a—the waiver had some four years

left to run (and many more by EPA’s current

estimation, Fed. Resp. BIO. 12-13), which was ample

time for automakers to revise their production and/or

pricing plans if the waiver were vacated. The matter

is no more intricate than that. Cf. Thole v. U.S. Bank

N.A., 590 U.S. 538, 547 (2020) (“Courts sometimes

make standing law more complicated than it needs to

be.”).

15

Again, the agency’s own actions prove the point.

If manufacturers’ future plans were already firmly

locked in place in March 2022, there would have been

no point in issuing the waiver at all.

While

manufacturers may take “years of lead time” to plan

their entire future model fleets or “re-optimize” their

product plans in response to regulatory shifts, Pet.

App. 23a-24a, it hardly follows that vacating the

waiver would lead to no change at all in automakers’

production mixes for the next several years—and any

change at all would suffice, as even partial relief is

enough to establish redressability. Massachusetts,

549 U.S. at 525; Larson, 456 U.S. at 243 n.15.

Moreover, even before EPA acknowledged that its

waiver would extend past model-year 2025, see Fed.

Resp. BIO. 12-13, the panel below conceded that

manufacturers “could change their prices” before the

end of 2025, “which may redress Petitioners’ injuries.”

Pet. App. 24a. Article III does not require petitioners

to also submit explicit “evidence” that automobile

pricing would timely respond to the laws of supply and

demand if the artificial constraints imposed by the

waiver were removed. 2

In any event, petitioners did submit supplemental

declarations explaining that automakers would be likely to react

to a decision vacating the waiver despite the passage of time. See

C.A. Priv. Pet. Supp. Br., Kreucher Decl. ¶¶1-5; C.A. Priv. Pet.

Supp. Br., Modlin Decl. ¶¶1-5. The panel’s refusal to consider

those supplemental declarations was yet another illustration of

its error in confusing standing with mootness. See Petrs. Br. 3941; cf. Pet. App. 30a-32a.

2

16

II. The Panel’s Erroneous Approach To

Standing

Would

Create

Unnecessary

Litigation Burdens.

The redressability analysis applied by the

decision below not only conflicts with settled law, but

threatens to impose unwarranted litigation burdens

on a wide swath of “unregulated but adversely affected

parties who traditionally have brought, and regularly

still bring, APA suits challenging agency rules.”

Corner Post, 603 U.S. at 827 (Kavanaugh, J.,

concurring). By suggesting that adversely affected

parties may need “additional affidavits or other

evidence” from third parties to establish redressability

even when the predictable effects of vacating the

challenged regulation should be clear, Pet. App. 24a25a, the panel’s approach threatens to encourage

litigants in countless future regulatory challenges to

spend significant resources filling the record with

third-party declarations or expert evidence that

should be unnecessary, just to explicitly state what

common sense already makes obvious.

Those baleful consequences will not be limited to

a handful of unlucky litigants. On the contrary,

“entire classes of historically common and vitally

important litigation against federal agencies” are

routinely brought (and in some cases are only likely to

be brought) by plaintiffs who are adversely affected

but not directly regulated by the challenged agency

action. Corner Post, 603 U.S. at 833, 842 (Kavanaugh,

J., concurring). The D.C. Circuit’s approach risks

“clos[ing] the courthouse doors on” those “unregulated

plaintiffs,” and would mark “a radical change to

17

administrative law that would insulate a broad swath

of agency actions from any judicial review.” Id. at 831.

API itself provides a perfect example of the

potential effects of the D.C. Circuit’s rule, as API is

currently challenging two more recent (and even more

extreme) EPA rules and a National Highway Traffic

Safety Administration (“NHTSA”) rule that together

represent the latest front in the same whole-ofgovernment

regulatory

effort

to

mandate

electrification of the Nation’s vehicle fleets. See Am.

Petroleum Inst. v. EPA, No. 24-1196 (D.C. Cir.

docketed June 13, 2024); Am. Petroleum Inst. v. EPA,

No. 24-1208 (D.C. Cir. docketed June 18, 2024); In re

Nat’l Highway Traffic Safety Admin., No. 24-7001

(6th Cir. docketed July 18, 2024). API’s members are

not the direct object of those rules, but they are

unquestionably adversely affected by those rules,

which seek to dramatically reduce the number of

liquid-fueled vehicles on the Nation’s roads by 2032.

See, e.g., 89 Fed. Reg. 27,842, 27,858, 28,092, 28,129

(Apr. 18, 2024) (projecting that EPA’s new emissions

standards will “lower demand for liquid fuel,”

“reduc[e] … U.S. gasoline consumption by 780 billion

gallons,” and adversely affect “the petroleum refining

industry [and] fuel distributors”).

Given the obvious and severe impact of the rules

at issue in those cases on API’s members, and the

equally obvious fact that vacating those rules would at

least mitigate that impact, the standing inquiry

should be straightforward—which is presumably why

the government has not thus far disputed fuel

producers’ Article III standing. Given the agencies’

own projections that their standards will cause

18

automakers to change their behavior (and reduce

gasoline consumption by hundreds of billions of

gallons), see, e.g., 89 Fed. Reg. at 28,092, there should

be no question that vacating those behavior-modifying

standards will redress the injuries of API members.

Nothing further is required to satisfy Article III and

allow adjudication of API’s challenges on the merits.

By insisting on additional evidence of redressability —

even when the challenged regulation is explicitly

designed to limit demand for the challenger’s

products—the decision below threatens to impose

unwarranted additional burdens on an entire class of

regulatory litigants.

Nothing about Article III

requires that unjustifiable approach.

Finally, the stakes of this case in particular

underscore the importance of correcting the D.C.

Circuit’s erroneous standing analysis. By relying on

its mistaken view of standing, the panel below avoided

deciding whether EPA has statutory authority to

waive preemption for California-specific standards

directed at curbing global climate change—an

important issue that has now evaded judicial scrutiny

for over a decade. That is no small matter, as EPA’s

strained interpretation of the statute cannot be

squared with its plain text, and has allowed California

to extend its unusual claim to regulatory authority

over the Nation’s automobile industry far beyond the

careful limits that Congress set. While the merits of

that interpretation are not at issue at this stage, they

highlight the importance of correcting the D.C.

Circuit’s erroneous standing decision below, and

ensuring that the limits of Article III are not distorted

to empower courts to avoid questions they would

prefer not to decide.

19

CONCLUSION

This Court should reverse the judgment of the

court of appeals and remand for further proceedings.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

C. HARKER RHODES IV

NICHOLAS A. AQUART*

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

*Supervised by principals of the firm who

are members of the Virginia bar

Counsel for Amicus Curiae

February 3, 2024