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 ADVANCING AMERICAN

FREEDOM; AMERICAN ASSOCIATION OF SENIOR

CITIZENS; AMERICAN CONSTITUTIONAL RIGHTS UNION;

AMERICAN ENCORE; AMERICAN ENERGY INSTITUTE;

AMERICAN LAND RIGHTS ASSOCIATION; AMERICAN

LANDS COUNCIL; AMERICAN SECURITIES ASSOCIATION;

[LIST OF AMICI CONTINUED ON INSIDE COVER]

J. Marc Wheat

Counsel of Record

Timothy Harper (Admitted in DC)

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W.

Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@advancingamericanfreedom.com

February 3, 2024

Counsel for Amici Curiae

AMERICAN VALUES; AMERICANS FOR LIMITED

GOVERNMENT; AMAC ACTION; E. CALVIN BEISNER, PH.D.,

PRESIDENT, CORNWALL ALLIANCE FOR THE STEWARDSHIP

OF CREATION; SHAWNNA BOLICK, ARIZONA STATE

SENATOR, DISTRICT 2; CENTER FOR POLITICAL RENEWAL;

CENTER FOR URBAN RENEWAL AND EDUCATION (CURE);

DANIEL DARLING; EAGLE FORUM; EAGLE FORUM OF

GEORGIA; JOANN FLEMING, EXECUTIVE DIRECTOR,

GRASSROOTS AMERICA - WE THE PEOPLE PAC; FREEDOM

FOUNDATION OF MINNESOTA; FRONTLINE POLICY

COUNCIL; REPRESENTATIVE STEVEN E. GALLOWAY,

DISTRICT 24, MONTANA HOUSE OF REPRESENTATIVES;

CHARLIE GEROW; ALLEN J. HEBERT, CHAIRMAN,

AMERICAN-CHINESE FELLOWSHIP OF HOUSTON; IDAHO

FREEDOM FOUNDATION; INTERNATIONAL CONFERENCE OF

EVANGELICAL CHAPLAIN ENDORSERS; JCCWATCH.ORG;

TIM JONES, FORMER SPEAKER, MISSOURI HOUSE, AND

CHAIRMAN, MISSOURI CENTER-RIGHT COALITION;

MEN AND WOMEN FOR A REPRESENTATIVE DEMOCRACY

IN AMERICA, INC.; NATIONAL CENTER FOR PUBLIC POLICY

RESEARCH; NATIONAL RELIGIOUS BROADCASTERS;

ORTHODOX JEWISH CHAMBER OF COMMERCE; PROJECT

SENTINEL; MELISSA ORTIZ, PRINCIPAL & FOUNDER,

CAPABILITY CONSULTING; PROJECT SENTINEL; PROJECT

21 BLACK LEADERSHIP NETWORK; RIO GRANDE

FOUNDATION; PAMELA S. ROBERTS, IMMEDIATE PAST

PRESIDENT, KENTUCKY FEDERATION OF REPUBLICAN

WOMEN; SETTING THINGS RIGHT; 60 PLUS ASSOCIATION;

STAND FOR GEORGIA VALUES ACTION; STRATEGIC

COALITIONS & INITIATIVES, LLC; STUDENTS FOR LIFE OF

AMERICA; THEM BEFORE US; TRADITION, FAMILY,

PROPERTY, INC.; TRUTH IN ENERGY AND CLIMATE; WOMEN

FOR DEMOCRACY IN AMERICA, INC.; YANKEE INSTITUTE;

YOUNG AMERICA'S FOUNDATION; AND YOUNG

CONSERVATIVES OF TEXAS IN SUPPORT OF PETITIONERS

i

QUESTIONS PRESENTED

1. 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

QUESTIONS PRESENTED......................................... i

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

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

STATEMENT OF INTEREST OF AMICI CURIAE .... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ........................................................... 2

ARGUMENT ................................................................ 8

I.

The Supreme Court’s Standing Doctrine

Should Ensure that Fundamental Rights

are Protected and Violations of Law are not

Insulated from Review .......................................... 8

II. This Case is an Instance of Unconstitutional

Government Overreach that Must be Allowed

to Proceed to the Merits to Protect the

Constitutional Interests of Petitioners .............. 13

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Cases

Alabama Assn. of Realtors v. Dep’t of Health and

Hum. Servs.,

594 U.S. 758 (2021) ......................................... 14, 16

Am. Auto. Mfrs. Ass’n v. Comm’r, Mass. Dept. of Env’t

Prot.,

998 F. Supp. 10 (D. Mass. 1997) ............................. 4

Bush v. Vera,

517 U.S. 952 (1996) ................................................. 3

Chamber of Com. of U.S. v. EPA,

642 F.3d 192 (D.C. Cir. 2011) ........................... 4, 17

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

467 U.S. 837 (1984) ............................................. 6, 7

Colorado River Water Conservation Dist. v.

United States,

424 U.S. 800 (1976) ................................................. 3

Dred Scott v. Sandford,

60 U.S. 393 (1856) ................................................. 10

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .................................... 13-14, 18

Ford Motor Co. v. EPA,

606 F.2d 1293 (D.C. Cir. 1979) ............................... 4

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ................................................. 7

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., OSHA,

595 U.S. 109 (2022) ......................................... 13, 14

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................. 5

iv

Parents Protecting Our Children, UA v.

Eau Claire Area Sch. Dist., Wisconsin,

604 U.S. ___ (2024) ............................................ 3, 12

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) ......................................... 17, 18

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ........................................... 7, 14

West Virginia v. EPA,

597 U.S. 697 (2022) ....... 7, 13, 14, 15, 16, 17, 18, 20

Statutes, Regulations and Other Authorities

42 U.S.C. § 7521(a) .................................................... 19

42 U.S.C. § 7521(a)(1) ................................................ 18

42 U.S.C. § 7521, Sec. 6(c) ........................................... 4

42 U.S.C. § 7543 ........................................................ 19

42 U.S.C. § 7543(b) .................................................... 17

42 U.S.C. § 7543(b)(1) ............................................ 4, 19

42 U.S.C. § 7543(b)(1)(A)-(C)..................................... 19

42 U.S.C. § 7543(b)(3) ................................................ 18

42 U.S.C. § 7543(c) .................................................... 17

49 U.S.C. § 32902(a) .................................................. 19

49 U.S.C. § 32919 ...................................................... 19

49 U.S.C. § 32919(a) .................................................. 19

78 Fed. Reg. 2,112 ..................................................... 20

78 Fed. Reg. 2,130 ..................................................... 20

Cal. Code Regs. Tit. 13, § 1961.2(a) .......................... 20

v

Cal. Code Regs. Tit. 13, § 1961.3(a)(2)(B)-(C) ........... 20

H.R. Rep. No. 90-728 (1967) .................................. 4, 19

H.R. Rep. No. 95-294 (1977) ........................................ 4

AAF Provides Written Testimony for Senate

Hearing on Mifepristone, Advancing

American Freedom, September 24, 2024,

https://advancingamericanfreedom.com/

aaf-provides-written-testimony-for-senatehearing-on-mifepristone/....................................... 11

Alliance for Hippocratic Medicine v. Food and

Drug Administration, No. 2:22-CV-223-Z

(N.D. Tex. Apr. 7, 2023) ........................................ 12

Brief of Amici Advancing American Freedom et al.,

Food and Drug Administration v. Alliance for

Hippocratic Medicine, 602 U.S. ___ (2024),

(No. 23-235) https://advancingamericanfreedom.

com/fda-danco-laboratories-v-alliance-forhippocratic-medicine/ ............................................ 11

Brief of Amici Curiae Advancing American

Freedom et al., Loper Bright Enterprises v.

Raimondo, 603 U.S. 369 (2024), https://

advancingamericanfreedom.com/

loper-v-bright/ .......................................................... 7

Brief of Amici Curiae Advancing American

Freedom et al., Parented Protecting

Our Children v. Eau Claire Area

School District, No. 23-1280, https://

advancingamericanfreedom.com/

parents-protecting-our-children-v-eauclaire-area-school-district/ ...................................... 3

vi

California Air Resources Board, States that Have

Adopted California’s Vehicle Regulations

(June 2024), https://ww2.arb.ca.gov/our-work/

programs/advanced-clean-cars-program/

states-have-adopted-californias-vehicleregulations ....................................................... 15, 16

California State Motor Vehicle Pollution Control

Standards; Notice of Decision Denying a

Waiver of Clean Air Act Preemption for

California’s 2009 and Subsequent Model Year

Greenhouse Gas Emission Standards for

New Motor Vehicles, 73 Fed. Reg. 12156

(Mar. 6, 2008) .................................................... 6, 21

California State Motor Vehicle Pollution

Control Standards; Notice of Decision

Granting a Waiver of Clean Air Act Preemption

for California’s 2009 and Subsequent Model

Year Greenhouse Gas Emission Standards

for New Motor Vehicles, 74 Fed. Reg. 32744

(July 8, 2009) ..................................................... 6, 21

California State Motor Vehicle Pollution

Control Standards; Notice of Decision

Granting a Waiver of Clean Air Act Preemption

for California’s Advanced Clean Car Program

and a Within the Scope Confirmation for

California's Zero Emission Vehicle Amendments

for 2017 and Earlier Model Years,

78 Fed. Reg. 2112 (Jan. 9, 2013) ....................... 6, 21

vii

California State Motor Vehicle Pollution

Control Standards; Advanced Clean Car

Program; Reconsideration of a Previous

Withdrawal of a Waiver of Preemption;

Notice of Decision, 87 Fed. Reg. 14332

(Mar. 14, 2022) ............................................... 6-7, 21

Exec. Order 14037 ....................................................... 4

Edwin J. Feulner, Jr., Conservatives Stalk the

House: The Story of the Republican Study

Committee, 212 (Green Hill Publishers, Inc.

1983) ........................................................................ 1

Food and Drug Administration v. Alliance for

Hippocratic Medicine,

602 U.S. ___, No. 23-235, slip op.

(June 13, 2024) ...................................................... 12

Neil Gorsuch, Janie Nitze, Over Ruled:

The Human Toll of Too Much Law 90

(2024) ................................................................. 6, 15

Dan McLaughlin, U-Haul Literally Ran Out of

Trucks Leaving California, National Review

(Jan. 14, 2022 11:23AM) https://www.

nationalreview.com/corner/u-haul-literallyran-out-of-trucks-leaving-california/ ...................... 8

NAEP Report Card: Reading, National

Assessment of Educational Progress,

https://www.nationsreportcard.gov/

reports/reading/2024/g4_8/?grade=4

(last visited Jan. 31, 2025) .................................... 13

Ohio v. EPA,

No. 22-1081 slip op. 9 (D.C. Cir. April 9, 2024) .... 18

viii

The Declaration of Independence para. 2

(U.S. 1776) ............................................................... 8

The Federalist No. 10 (James Madison)

(George W. Carey and James McClellan, eds.,

The Liberty Fund 2001) ...................................... 4, 9

The Federalist No. 17 (Alexander Hamilton)

(George W. Carey and James McClellan, eds.,

The Liberty Fund 2001) .......................................... 5

The Federalist No. 80 (Alexander Hamilton)

(George W. Carey and James McClellan, eds.,

The Liberty Fund 2001) ........................................ 10

The Safer Affordable Fuel-Efficient (SAFE) Vehicles

Rule Part One: One National Program,

84 Fed. Reg. 51310 (Sept. 27, 2019) ................. 6, 21

1

STATEMENT OF INTEREST OF

AMICI CURIAE

Advancing American Freedom (AAF) is a

nonprofit organization that promotes and defends

policies that elevate traditional American values,

including equal treatment before the law. 1 AAF “will

continue to serve as a beacon for conservative ideas, a

reminder to all branches of government of their

responsibilities to the nation,”2 and believes that the

balance of powers between the States and the federal

government must be struck with due respect for the

coequal sovereignty of every State and of the liberty

interests each of the people those States represent and

serve. Advancing American Freedom files this brief on

behalf of its 131,317 members.

Amici American Association of Senior Citizens;

American Constitutional Rights Union; American

Encore; American Energy Institute; American Land

Rights Association; American Lands Council;

American Securities Association; American Values;

Americans for Limited Government; AMAC Action; E.

Calvin Beisner, Ph.D., President, Cornwall Alliance

for the Stewardship of Creation; Shawnna Bolick,

Arizona State Senator, District 2; Center for Political

Renewal; Center for Urban Renewal and Education

(CURE); Daniel Darling; Eagle Forum; Eagle Forum

1 No counsel for a party authored this brief in whole or in part.

No person other than Amicus Curiae and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

2 Edwin J. Feulner, Jr., Conservatives Stalk the House: The Story

of the Republican Study Committee, 212 (Green Hill Publishers,

Inc. 1983).

2

of Georgia; JoAnn Fleming, Executive Director,

Grassroots America - We the People PAC; Freedom

Foundation of Minnesota; Frontline Policy Council;

Representative Steven E. Galloway, District 24,

Montana House of Representatives; Charlie Gerow;

Allen J. Hebert, Chairman, American-Chinese

Fellowship of Houston; Idaho Freedom Foundation;

International Conference of Evangelical Chaplain

Endorsers; JCCWatch.org; Tim Jones, Former

Speaker, Missouri House, and Chairman, Missouri

Center-Right Coalition; Men and Women for a

Representative Democracy in America, Inc.; National

Center for Public Policy Research; National Religious

Broadcasters; Orthodox Jewish Chamber of

Commerce; Project Sentinel; Melissa Ortiz, Principal

& Founder, Capability Consulting; Project Sentinel;

Project 21 Black Leadership Network; Rio Grande

Foundation; Pamela S. Roberts, Immediate Past

President, Kentucky Federation of Republican

Women; Setting Things Right; 60 Plus Association;

Stand for Georgia Values Action; Strategic Coalitions

& Initiatives, LLC; Students for Life of America; Them

Before Us; Tradition, Family, Property, Inc.; Truth in

Energy and Climate; Women for Democracy in

America, Inc.; Yankee Institute; Young America's

Foundation; and Young Conservatives of Texas

believe that the Constitution and the ideas that

underly it are essential to the preservation of the

freedom of the people.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Constitution establishes three branches of

government, setting them against one another in

3

numerous ways as safeguards against government

abuse. The federal courts are often the last effective

line of defense against government abuse and the

inevitable harm it causes. The Court has established

standing requirements in an effort to give effect to the

language of Article III and to ensure that federal

courts do not exceed their role in the constitutional

system primarily as a backstop against illegal or

excessive actions by the other branches. Cf., Bush v.

Vera, 517 U.S. 952, 985 (1996) (noting, in relation to

the States, federal courts’ “customary and appropriate

backstop role”). However, “[w]hile it is important that

federal courts heed the limits of their constitutional

authority, it is equally important that they carry out

their ‘virtually unflagging obligation . . . to exercise

the jurisdiction given them.”3 Parents Protecting Our

Child., UA v. Eau Claire Area Sch. Dist., 604 U.S. ___

(2024), No. 23-1280, slip op. at 2 (2024) (Alito, J.,

dissenting from denial of certiorari) (quoting Colorado

River Water Conservation Dist. v. United States, 424

U.S. 800, 817 (1976)).

This case concerns an Environmental

Protection Agency (EPA) statutory interpretation

that, if upheld, would undermine the basic principle of

the American federal system that each State in the

Union possesses equal sovereignty to every other

State. Under the Clean Air Act (CAA), “any State” may

get a waiver to the EPA’s motor vehicle emissions

regulations, allowing that State to substitute its own

3

Brief of Amici Curiae Advancing American Freedom et al., Parents

Protecting Our Child. v. Eau Claire Area School Dist., No. 23-1280,

available at https://advancingamericanfreedom.com/parents-protectingour-children-v-eau-claire-area-school-district/.

4

standards. 42 U.S.C. § 7543(b)(1). In practice, this

waiver is available only to deep-blue California, the

most regulatory State in the Union. See Exec. Order

14037, 42 U.S.C. § 7521, Sec. 6(c); H.R. Rep. No. 95294, at 301–02 (1977); Am. Auto. Mfrs. Ass'n v.

Comm'r, Mass. Dept. of Env't Prot., 998 F. Supp. 10,

13 (D. Mass. 1997). Because “California is the only

state that had adopted emissions standards prior to

March 30, 1966, it is the only state eligible for a waiver

of federal preemption under th[e] provision.” Chamber

of Com. of U.S. v. EPA, 642 F.3d 192, 196 (D.C. Cir.

2011) (citing Ford Motor Co. v. EPA, 606 F.2d 1293,

1296 (D.C. Cir. 1979)). The waiver provision of the

CAA was enacted largely to enable California to

address geographically unique and local problems like

Los Angeles smog. H.R. Rep. No. 90-728, at 22 (1967).

The history of this waiver demonstrates that this

scheme undermines the primary virtues of national

regulation,

uniformity

and

stability,

while

simultaneously

undermining

the

virtues

of

federalism.

The EPA’s waiver of preemption in this case is

a perversion of the federal system adopted by the

People with their ratification of the Constitution. The

Constitution was designed to leave most powers to the

States, as demonstrated both by the limited

enumeration of federal powers and the express

statement of reserved powers in the Tenth

Amendment. The Framers knew that local control was

preferable wherever it was possible,4 and that

4 See The Federalist No. 10 at 47 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001)

5

allowing each State to regulate most issues for itself

would create what Justice Brandeis would later

describe as laboratories of governance in which each

State has the power to address the issues it faces in

unique ways. New State Ice Co. v. Liebmann, 285 U.S.

262 (1932) (Brandeis, J., dissenting). National

regulation, on the other hand, may be desirable or

even necessary where fifty different approaches to a

particular issue would be untenable; a problem

Congress can address where the Constitution grants

it the power to do so. Assuming for the sake of

argument that the federal government’s current

approach to the regulation of vehicular carbon

emissions is within the scope of its constitutional

power, the waiver at issue in this case creates the

worst of both worlds.

On the one hand, most states are unable to

pursue their own regulatory interests and agendas

because they are required to follow the EPA’s national

standard. On the other hand, regulated parties have

no reliable stability because the EPA has repeatedly

granted and then revoked California’s preemption

waiver, depending on the occupant of the White

(explaining that under the Constitution, “the great and aggregate

interests” of the nation should be “referred to the national

[legislature], the local and particular to the state legislatures.”);

The Federalist No. 17 at 80-81 (Alexander Hamilton) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001) (“The

administration of private justice between the citizens of the same

State, the supervision of agriculture and of other concerns of a

similar nature, all those things in short which are proper to be

provided for by local legislation, can never be desirable cares of a

general jurisdiction.”).

6

House.5 In 2005, California applied for a waiver to

allow it to implement its Low-Emission Vehicle

Greenhouse Gas Program; in 2008, the EPA denied

this waiver application.6 Then in 2009, the EPA

reversed its prior decision and granted the waiver.7 In

2012, California applied for the waiver at issue here,

and the EPA granted it early the next year.8 In 2019,

the EPA revoked that waiver.9 In 2022 the EPA, again

reversed itself, reinstating the 2012 waiver.10

5 Under Chevron, “courts” were “even . . . deferring to agencies

when they changed their views about a statute’s meaning.” Neil

Gorsuch, Janie Nitze, Over Ruled: The Human Toll of Too Much

Law 90 (2024). Today, the Court should be skeptical of an

agency’s claim that the statute it interprets clearly means what

the agency says it means where, as here, the agency’s

interpretation has repeatedly changed.

6 California State Motor Vehicle Pollution Control Standards;

Notice of Decision Denying a Waiver of Clean Air Act Preemption

for California’s 2009 and Subsequent Model Year Greenhouse Gas

Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12156,

12159–63 (Mar. 6, 2008).

7 California State Motor Vehicle Pollution Control Standards;

Notice of Decision Granting a Waiver of Clean Air Act Preemption

for California’s 2009 and Subsequent Model Year Greenhouse Gas

Emission Standards for New Motor Vehicles, 74 Fed. Reg. 32744,

32745–46 (July 8, 2009).

8 California State Motor Vehicle Pollution Control Standards;

Notice of Decision Granting a Waiver of Clean Air Act Preemption

for California’s Advanced Clean Car Program and a Within the

Scope Confirmation for California's Zero Emission Vehicle

Amendments for 2017 and Earlier Model Years, 78 Fed. Reg. 2112

(Jan. 9, 2013).

9 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part

One: One National Program, 84 Fed. Reg. 51310 (Sept. 27, 2019).

10 California State Motor Vehicle Pollution Control Standards;

Advanced Clean Car Program; Reconsideration of a Previous

7

Whatever the legitimacy of the statute in

question here, this case seeks to challenge the EPA’s

interpretation of that statute. When agencies claim

significant new regulatory power based on an existing

statute, the major questions doctrine calls for judicial

skepticism. West Virginia v. EPA, 597 U.S. 697, 724

(2022) (quoting Utility Air Grp. v. EPA, 573 U.S 302,

324 (2014)). With Chevron U.S.A. Inc. v. Natural Res.

Def. Council, 467 U.S. 837 (1984) overturned by this

Court in Loper Bright Enters. v. Raimondo, No. 22-451

(June 28, 2024), when such interpretations are not

based on a clear congressional statement, they should

be struck down by the Courts as administrative

overreach.11 Because Congress never granted the EPA

authority to waive preemption for California as it did

in this case, the Court should grant certiorari and

strike down that exemption.

California’s ability to adopt an alternative

standard and the inevitable back and forth of the

EPA’s granting and rescinding of the exemption

creates the regulatory uncertainty that preemption of

the States was supposed to address. Either carbon

emissions are a national issue warranting federal

standards or they are an issue that is better left to the

States in general, not just one hyper-regulatory

State.12

Withdrawal of a Waiver of Preemption; Notice of Decision, 87 Fed.

Reg. 14332, 14332-33 (Mar. 14, 2022).

11

Brief of Amici Curiae Advancing American Freedom et al., Loper Bright

Enterprises v. Raimondo, 603 U.S. 369 (2024) available at

https://advancingamericanfreedom.com/loper-v-bright/.

12 California’s inclination towards regulation is so severe that U-

8

As this case and others demonstrate, federal

courts can only effectively fulfill their role in the

constitutional system if the requirements of standing

are not unduly restrictive on those courts’ jurisdiction.

Americans, whether individuals, organizations, or

businesses, have a right to judicial redress at least

when they can show reasonable likelihood of harm

from government policy. In this case, the D.C. Circuit’s

interpretation of the standing requirements would

insulate potentially illegal government policies from

judicial review to the detriment of Americans and

their interests. This Court should clarify standing to

ensure that that does not happen.

ARGUMENT

I. The Supreme Court’s Standing Doctrine

Should Ensure that Fundamental Rights are

Protected and Violations of Law are not

Insulated from Review.

The Declaration of Independence, the

fundamental document of American political

philosophy, makes clear the purpose of government:

“Governments are instituted among Men” to secure

“certain unalienable Rights” among which “are Life,

Liberty and the pursuit of Happiness.” The

Declaration of Independence para. 2 (U.S. 1776).

However, even a government instituted as a protector

Haul at one point could not keep up with demand for trucks for

people to move out of the State. Dan McLaughlin, U-Haul

Literally Ran Out of Trucks Leaving California, National Review

(Jan. 14, 2022 11:23AM) https://www.nationalreview.com/

corner/u-haul-literally-ran-out-of-trucks-leaving-california/.

9

of liberty will tend to violate that liberty because some

people in the government will abuse the power they

are given.

This problem can also result from a faction that

manages to exercise control over government. As

James Madison explained, a “faction” is “a number of

citizens, whether amounting to a majority or minority

of the whole, who are united and actuated by some

common impulse of passion, or of interest, adverse to

the rights of other citizens, or to the permanent and

aggregate interests of the community.”13

According to Madison, if the faction is a

majority of voters, “the popular form of government

. . . enables it to sacrifice to its ruling passion or

interest, both the public good and the rights of other

citizens.”14 Madison argued that the republican form

of government and the drawing of representatives

from the whole country would help mitigate the

dangers of faction.15 Madison assumed that when the

interests of a faction are counter to those of the

majority, “the republican principle” will allow the

majority to “defeat [the faction’s] sinister views by

regular vote.”16 Of course, neither Madison nor the

state legislators who ratified the Constitution were

counting on Congress’s delegating significant

legislative power to unelected bureaucrats, limiting

the ability of even a majority to protect their interests

from government overreach.

13

Madison, The Federalist No. 10 supra note 4 at 43.

Id. at 45.

15

Id. at 48.

16

Id. at 45.

14

10

Article III courts supplement the republican

structure of American government by checking

government overreach. As Alexander Hamilton

explained, “there ought always be a constitutional

method of giving efficacy to constitutional

provisions.”17 The Court’s role is unchanged whether

the policy challenged in any given case is the result of

a majority or a minority faction. The rights of the

people and the limitations on government power

cannot be legitimately abused whether that abuse

arises from a majority’s preferred policy or the

preferred policy of the few and powerful. This Court’s

standing doctrine has prevented federal courts from

effectuating constitutional provisions.

The federal court system is often the last

opportunity for Americans to protect their rights or

hold government officials accountable. Both as a

constitutional and a practical matter, the Supreme

Court has implemented standing requirements that

prevent lawsuits that are not based on a true case or

controversy. However, that standard has allowed

courts to close the door on legitimate claimants who

may have no other meaningful opportunity for relief.

Infamously, the humanity of a slave was overlooked

because of an overly narrow and legalistic

interpretation of standing. See Dred Scott v. Sandford,

60 U.S. 393 (1856).

The Court’s decision in this case should clarify

that the requirements of standing should not bar

legitimate claims for relief. The Court’s current

standing doctrine, in practice, has made it difficult to

17

The Federalist No. 80, at 411 (Alexander Hamilton) (George W. Carey

and James McClellan, eds., The Liberty Fund 2001).

11

challenge illegal or rights-violating government action

in a number of areas.

The issue of abortion is another area where

standing requirements make it very difficult to

challenge government action that deprives voiceless

members of our human community of their

fundamental rights. At stake in abortion is the

fundamental right to life. That right is the first right

in the Declaration’s triad for good reason. No other

right can be exercised once someone is deprived of

their right to life. The natural plaintiff challenging

abortion would be the target of abortion and the most

vulnerable among us: the unborn. However, the

unborn cannot advocate for their own interests.

As a result, in the case of the abortion drug

mifepristone, doctors sued on the basis of the harm

they face from the drug’s approval for use as an

abortifacient. FDA approval of mifepristone was

blatantly political and ignored the dangers of chemical

abortion.18 The protections initially required for the

prescription of the drug were also later reduced not

based on new evidence but for political reasons.19 The

FDA then acted to delay the doctor’s lawsuit

challenging the drug’s approval. As the district court

18

Brief of Amici Advancing American Freedom et al., Food and Drug

Administration v. Alliance for Hippocratic Medicine, 602 U.S. ___ (2024),

(No. 23-235) https://advancingamericanfreedom.com/fda-danco-laboratoriesv-alliance-for-hippocratic-medicine/.

AAF Provides Written Testimony for Senate Hearing on Mifepristone,

Advancing American Freedom, September 24, 2024, available at

https://advancingamericanfreedom.com/aaf-provides-written-testimony-forsenate-hearing-on-mifepristone/.

19

AAF Provides Written Testimony for Senate Hearing on Mifepristone,

supra note 18 at 7-10.

12

in that case explained, “Why did it take two decades for

judicial review [of mifepristone’s approval] in federal court?

After all, Plaintiffs’ petitions challenging the 2000 Approval

date back to the year 2002, right? Simply put, FDA

stonewalled judicial review—until now.” Alliance for

Hippocratic Medicine v. Food and Drug Administration, No.

2:22-CV-223-Z at 1-2 (N.D. Tex. Apr. 7, 2023). After

decades of delaying, the FDA was able to avoid review

when this Court ruled that the doctors challenging the

approval did not have standing. Food and Drug

Administration v. Alliance for Hippocratic Medicine,

602 U.S. ___, No. 23-235, slip op. (June 13, 2024).

Parents, too, have faced the obstacle of

narrowly read standing requirements in their efforts

to vindicate their rights and the rights of their

children. In Parents Protecting Our Children, UA v.

Eau Claire Area Sch. Dist., the Seventh Circuit found

that parents lacked standing to challenge the school’s

policy that it would not inform parents that it is

engaging in so-called “social gender transitioning”

with their children. No. 23-1280, slip op. at 1, 604 U.S.

____ (Alito, J., dissenting from denial of certiorari).

The school district in question had trained teachers

that “parents are not entitled to know their kids’

identities. That knowledge must be earned.” Id. at 12. Despite this blatant anti-parent mentality, the

Seventh Circuit held that the parents’ harm was

speculative and thus insufficient to confer standing.

Id. at 2. Further, similar policies have been adopted

across the country leaving millions of parents and

children at risk.20 See id. at 1. Because parents have a

20

While school districts and activist teachers are focusing on inducing

13

right to direct their child’s upbringing, government

intervention through schools or otherwise without the

parents’ knowledge and consent is unconstitutional,

except in extreme cases. Yet a narrow reading of this

Court’s standing doctrine was used to bar parents

from obtaining relief when those rights were violated.

II. This Case is an Instance of Unconstitutional

Government Overreach that Must be Allowed

to Proceed to the Merits to Protect the

Constitutional Interests of Petitioners.

The abuse of government power in this case also

demonstrates the need for clear principles of standing

that allow parties injured by government action to

vindicate their rights.

The major questions doctrine “ensures that the

national government's power to make the laws that

govern us remains where Article I of the Constitution

says it belongs—with the people's elected

representatives.” Nat'l Fed'n of Indep. Bus. v. Dep't of

Lab., OSHA, 595 U.S. 109, 124 (2022) (Gorsuch, J.,

concurring). The doctrine is implicated where “‘the

history and the ‘breadth of the authority that [the

agency] has asserted,’ and the ‘economic and political

significance’ of that assertion, provide a ‘reason to

hesitate before concluding that Congress’ meant to

confer such authority.” West Virginia, 597 U.S. at 721

(alteration in original) (quoting FDA v. Brown &

confusion among America’s children regarding the basic fact that people

are either male or female, almost 70 percent of fourth graders and 70

percent of eighth graders are not proficient readers according to the

National Assessment of Educational Progress. NAEP Report Card:

Reading,

National

Assessment

of

Educational

Progress,

https://www.nationsreportcard.gov/reports/reading/2024/g4_8/?grade=4

(last visited Jan. 31, 2025).

14

Williamson Tobacco Corp., 529 U.S. 120, 159-60

(2000)). Where the doctrine is implicated, “[t]he

agency instead must point to ‘clear congressional

authorization’ for the power it claims.” Id. at 723

(quoting Utility Air Regulatory Group v. EPA, 573 U.S.

302, 324 (2014)). As Justice Gorsuch has explained,

there are three circumstances in which the doctrine is

implicated and thus that require the agency to show

clear congressional direction.

First, the “doctrine applies when an agency

claims the power to resolve a matter of great ‘political

significance.’” West Virginia, 597 U.S. at 743 (Gorsuch,

J., concurring) (citing NFIB v. OSHA, 595 U.S. at 117

(some internal quotation marks omitted)). Second, it

applies when “an agency . . . seeks to regulate ‘a

significant portion of the American economy.’” Id. at

744 (some internal quotation marks omitted) (citing

West Virginia, 597 U.S. at 722) (majority opinion)).

And finally, the doctrine applies when the agency

“seeks to ‘intrud[e] into an area that is the particular

domain of State law.’” Id. (citing Alabama Assn. of

Realtors v. Dep’t of Health and Hum. Servs., 594 U.S.

758, 764 (2021)). The EPA’s waiver of preemption for

California in this case does all three.

The EPA’s waiver, in effect, “claims the power

to resolve a matter of great ‘political significance.’” Id.

at 743 (Gorsuch, J., concurring) (citing NFIB v. OSHA,

595 U.S. at 117 (some internal quotation marks

omitted)). The waiver scheme at issue here reaches

much further than California by design. Seventeen

States, as well as the District of Columbia have

adopted either California greenhouse-gas emission

standards or California’s zero-emission-vehicle

15

mandate.21 Further, the goal of California’s emissions

restrictions is to affect global climate change.22 Brief

for Petitioners at 30 (“No one disputes that the express

purpose of California’s standards was to regulate

global climate change.”). Climate change and the best

regulatory approach with respect to that issue are

among the most contentious and debated issues in

contemporary politics. By granting California this

waiver, the EPA allows it to adopt policies designed to

affect that issue globally, while other States that

might prefer a different approach are left without any

such authority. This favoritism allows one privileged,

left-of-center State to set policy that will have a

significant, nationwide impact on a politically

contentious issue.

Second, the major questions doctrine is

implicated when “an agency . . . seeks to regulate ‘a

significant portion of the American economy.’” West

Virginia, 597 U.S. at 744 (Gorsuch, J., concurring)

(some internal quotation marks omitted) (citing West

Virginia, 597 U.S. at 722) (majority opinion)). The

States that have adopted at least some of California’s

California Air Resources Board, States that Have Adopted

California’s

Vehicle

Regulations

(June

2024),

https://ww2.arb.ca.gov/our-work/programs/advanced-clean-carsprogram/states-have-adopted-californias-vehicle-regulations.

22 “The academic and author Edwin J. Feulner, Jr., once argued

that Hayek’s ‘greatest contribution lay in the discovery of a

simple yet profound truth: man does not and cannot know

everything, and when he acts as if he does, disaster follows.’”

Gorsuch, supra note 6 at 99. Icharus’s hubris led to his downfall.

That a State would take it upon itself to solve a global issue

through burdensome regulation demonstrates a need to return to

that story and imbibe its lesson once more.

21

16

standards in place of the EPA’s, are together

regulating markets that account for at least 40.2% of

new “light-duty” vehicle registrations and 25.5% of

new “heavy-duty” vehicle registrations in the United

States.23 Considering the national market for new

light and heavy duty vehicle sales is a multi-billion

dollar per year industry, the waivers at issue in this

case allow for regulation of a sufficiently significant

portion of the American economy to implicate the

major questions doctrine. The property rights

involved, including the right to engage freely in the

market, are among those fundamental rights the

Constitution was designed to ensure, and those rights

are heavily impacted by the regulations here at issue.

Finally, agency action may implicate the major

questions doctrine when it “seeks to ‘intrud[e] into an

area that is the particular domain of state law.’” West

Virginia, 597 U.S. at 744 (Gorsuch, J., concurring)

(citing Alabama Assn. of Realtors v. Dep’t of Health

and Hum. Servs., 594 U.S. 758, 764 (2021)). Assuming

the federal government’s regulation of vehicular

emissions is a legitimate exercise of its Commerce

Clause power, the preemptive exercise of that power

depends on the assumption that a national standard

is necessary to avoid the patchwork of policies

federalism creates. If so, and if States cannot be

allowed to each adopt their own policies on this issue

because of the need for uniformity, then it is an offense

against all forty-nine other equally sovereign States to

CARB, States that Have Adopted California’s Vehicle

Regulations (June 2024), https://ww2.arb.ca.gov/our-work/

programs/advanced-clean-cars-program/states-have-adoptedcalifornias-vehicle-regulations.

23

17

grant special regulatory privileges to one. The EPA

and California cannot have it both ways. This is not to

say that States and localities could not be granted

exemptions to adopt policies narrowly tailored to

address unique local issues. But exemptions of that

nature, which Congress intended to create here, are

significantly different from policies that are designed

to address global issues, and which will have a

massive, nationwide economic and political impact.

“Other suggestive factors” that an agency

interpretation implicates the major questions

doctrine, are that the policy would cause an

“aggressive transformation” of a significant economic

sector or would “unquestionably ha[ve] an impact on

federalism.” West Virginia, 597 U.S. at 745-46

(Gorsuch, J., concurring). As the discussion above

makes clear, California’s unique preemption

exemption does exactly that in this case. By allowing

California and no other State to promulgate new

motor vehicle emissions regulations, the EPA has

given California the exclusive privilege not only to

more fully exercise its own sovereignty, but also to be

the only State that can propose emission rules that

can have interstate reach and effect. 42 U.S.C. § 7543

(b), (c); Chamber of Com. of U.S. v. EPA, 642 F.3d 192,

196 (D.C. Cir. 2011). Similarly, because equal State

sovereignty is a cornerstone of the American federal

system, see Shelby Cnty. v. Holder, 570 U.S. 529, 535

(2013) (ruling based on “the principle that all States

enjoy equal sovereignty.”), this California-only waiver

scheme “unquestionably has an impact on federalism”

by placing California in a special position to propose

legislation adoptable across the nation, in a way that

is unavailable to other States. Shelby Cnty., Ala. v.

18

Holder, 570 U.S. 529, 544 (2013); West Virginia, 597

U.S. at 746 (Gorsuch, J., concurring); 42 U.S.C.

§ 7543(b)(3).

Because the preemption waiver here implicates

political and economic issues of great importance and

effect, intrudes on the domain of State law, aims to

aggressively transform the automotive industry, and

undermines the States’ co-equal sovereignty, the EPA

must show a clear statement from Congress allowing

it to privilege a highly regulatory State with a power

available to no other State.

Because the EPA’s preemption waiver for

California implicates the major questions doctrine, the

agency must show that that waiver is based on a “clear

congressional statement authorizing [its] action.” See

West Virginia, 597 U.S. at 746 (Gorsuch, J.,

concurring). Factors that help the Court determine

whether there is clear congressional authorization

include the statutory context of the provision, “the age

and focus of the statute,” and the agency’s past

interpretations of the statute. Id. at 746-47.

“First, courts must look to the legislative

provisions on which the agency seeks to rely ‘with a

view to their place in the overall statutory scheme.’”

Id. (Gorsuch, J., concurring) (some internal quotation

marks omitted) (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000)). The EPA

relies on the waiver provision of the Clean Air Act

(CAA). Ohio v. EPA, No. 22-1081, slip op. at 9 (D.C.

Cir. April 9, 2024). The CAA enables the

Administrator of the EPA to promulgate rules

governing the emissions standards for new vehicles.

42 U.S.C. § 7521(a)(1). To gain a waiver from these

19

rules, California must determine that its proposed

regulations are “in the aggregate, at least as protective

of public health and welfare as applicable Federal

standards.” 42 U.S.C. § 7543(b)(1). The EPA must

then deny California’s waiver application if: “(A) the

determination of the State is arbitrary and capricious,

(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).” 42

U.S.C. § 7543(b)(1)(A)-(C). These limitations to the

EPA’s waiver authority reflect the reasons that

Congress allowed this narrow exception—to allow

States to adopt alternative regulations tailored to

address local environmental needs, particularly the

unique geography of the Los Angeles basin that

creates a smog problem unlike any other area in the

country. H.R. Rep. No. 90-728, at 22 (1967).

The Energy Policy and Conservation Act

(EPCA) also has relevant provisions that adjusted the

function of the CAA’s vehicle emissions statutory

scheme. The EPCA commands “the Secretary of

Transportation [to] prescribe by regulation average

fuel economy standards for automobiles.” 49 U.S.C. §

32902(a). The EPCA further explicitly preempts State

laws “relat[ing] to fuel economy standards.” 49 USCA

§ 32919(a). At the very least, by its plain language—

the preemption provision of the EPCA, enacted four

years after the waiver provision of the CAA, put a

limitation on the EPA’s power to grant waivers under

the CAA by precluding any State regulations on

average fuel economy standards. 42 U.S.C. § 7543; 49

U.S.C. § 32919. Because the California regulations at

issue here relate to average fuel economy standards,

20

the EPA was obligated to deny California’s waiver.

Cal. Code Regs. Tit. 13, § 1961.2(a); Cal. Code Regs.

Tit. 13 § 1961.3(a)(2)(B)-(C).

“Second, courts may examine the age and focus

of the statute the agency invokes in relation to the

problem the agency seeks to address.” West Virginia,

597 U.S. at 747 (Gorsuch, J., concurring). The waiver

provision of the CAA was enacted to enable California

to address local pollution problems like smog in Los

Angeles. H.R. Rep. No. 90-728, at 22 (1967). As

Petitioners explain, the California regulations at issue

here seek to curb global climate change, not alleviate

any “compelling or extraordinary” local issues. See

Brief for Petitioners at 28-29. But see 78 Fed. Reg.

2,112, 2,130. Neither the cause of global climate

change nor its effects are local to California, and the

State’s regulations would not have a meaningful

impact on global climate change. Brief for Petitioners

at 29-31. This complete misalignment between the

purpose of the preemption waiver and its use by the

State here demonstrates that the EPA’s grant of the

waiver was not based on a clear statement from

Congress.

“Third, courts may examine the agency's past

interpretations of the relevant statute.” West Virginia,

597 U.S. at 746 (Gorsuch, J., concurring) (citing West

Virginia, 597 U.S. at 710-11). In this case, the agency’s

interpretation has oscillated repeatedly, suggesting

that the agency itself cannot even decide what the

statute clearly means. As has already been noted,

after denying a California waiver application in 2008,

21

the EPA reversed itself a year later.24 Again in 2013,

the EPA granted the waiver,25 and again in 2019 it

revoked the waiver.26 Then in 2022, the EPA

reinstated the previous waiver.27 If the EPA insists

the statute is clear, it must provide a justification for

its own apparent inability to construe it consistently.

Given that the EPA’s current interpretation would

create a two-tiered federalism where one State is

given preeminent authority compared to the others,

and because such an arrangement violates the

principle of equal State sovereignty, the courts should

find that the EPA’s interpretation exceeds the power

granted to it by Congress.

The EPA’s waiver of preemption for California

in this case is not based on a clear statement of

24 California State Motor

Vehicle Pollution Control Standards;

Notice of Decision Denying a Waiver of Clean Air Act Preemption

for California’s 2009 and Subsequent Model Year Greenhouse Gas

Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12156,

12159–63 (Mar. 6, 2008). California State Motor Vehicle Pollution

Control Standards; Notice of Decision Granting a Waiver of Clean

Air Act Preemption for California’s 2009 and Subsequent Model

Year Greenhouse Gas Emission Standards for New Motor

Vehicles, 74 Fed. Reg. 32744, 32745–46 (July 8, 2009).

25 California State Motor Vehicle Pollution Control Standards;

Notice of Decision Granting a Waiver of Clean Air Act Preemption

for California’s Advanced Clean Car Program and a Within the

Scope Confirmation for California's Zero Emission Vehicle

Amendments for 2017 and Earlier Model Years, 78 Fed. Reg. 2112

(Jan. 9, 2013).

26 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part

One: One National Program, 84 Fed. Reg. 51310, (Sept. 27, 2019).

27 California State Motor Vehicle Pollution Control Standards;

Advanced Clean Car Program; Reconsideration of a Previous

Withdrawal of a Waiver of Preemption; Notice of Decision, 87 Fed.

Reg. 14332, 14332-33 (Mar. 14, 2022).

22

authority from Congress. Instead, it violates both the

express purpose of the waiver system and the basic

constitutional principles of federalism and coequal

State sovereignty. The Court should find that

Petitioners have standing and remand for

consideration on the merits.

CONCLUSION

The Court should find that Petitioners have

standing.

Respectfully submitted,

J. Marc Wheat

Counsel of Record

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W. Suite 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancingamericanfreedom.com

Counsel for Amici Curiae