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

A PPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR AMICUS CURIAE

CONSERVAMERICA IN SUPPORT

OF PETITIONERS

JOHN A. SHEEHAN

BRENT FEWELL

Counsel of Record

ConservAmerica

JOHN IRVING

1455 Pennsylvania Avenue,

Earth and Water Law, LLC

NW, Suite 400

1455 Pennsylvania Avenue, NW, Washington, DC 20001

Suite 400

Washington, DC 20001

(301) 980-5032

john.sheehan@earthandwatergroup.com

Counsel for ConservAmerica, Amicus Curiae

120267

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

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

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

I.

Limiting Regulatory Challenges To Directly

Regulated Parties Would Fail To Protect

Legitimate Third Party Interests . . . . . . . . . . . .2

II. The Challenged Regulatory Action Is

Contrary To ConservAmerica’s Interests . . . . . .5

III. It Is Important That Petitioners Be

Heard On the Merits. . . . . . . . . . . . . . . . . . . . . . . .9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

ii

TABLE OF CITED AUTHORITIES

Page

Cases:

Bennett v. Spear,

520 U.S. 154 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Chamber of Commerce v. EPA,

642 F.3d 192 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . 9

Ctr. For Biological Diversity v. EPA,

56 F.4th 55 (D.C. Cir. 2022). . . . . . . . . . . . . . . . . . . . . .4

CBS v. United States,

316 U.S. 407 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Energy Future Coal. v. EPA,

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

Food & Water Watch v. United States

Dep’t of Agric.,

1 F.4th 1112 (D.C. Cir. 2021) . . . . . . . . . . . . . . . . . . . . .4

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc.,

528 U.S. 167 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Massachusetts v. EPA,

549 U.S. 497 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

iii

Cited Authorities

Page

Ohio v. EPA,

98 F.4th 288 (D.C. Cir. 2024) . . . . . . . . . . . . . . . . . . . 9

Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Other Authorities:

John Heywood & Don MacKenzie, On the Road

Toward 2050: Potential for Substantial

Reduction in Light-Duty Vehicle Energy

Use an d G r ee nh o u se G a s Emi ss i o n s,

Massachusetts Institute of Technolog y,

https://energy.mit.edu/wp-content/uploads/

2015/12/MITEI-RP-2015-001.pdf . . . . . . . . . . . . . . . .7

Todd Johnston, Slow Dow n: The Case for

Technology Neutral Transportation Policy,

ConservAmerica (Dec. 10, 2020), https://

conser va mer ic a .org /rep or t -h igh l ight s i mpor t a nce - of-pol icy-neut ra l ity-i ndecarbonizing-transportation-sector/ . . . . . . . . . . .6

Guelfo, J.L., Ferguson, P.L., Beck, J. et al.

Lithium-ion battery components are at the

nexus of sustainable energy and environmental

UHOHDVHRISHUDQGSRO\ÁXRURDON\OVXEVWDQFHV

Nat Commun 15, 5548 (2024), https://doi.org/

10.1038/s41467-024-49753-5 . . . . . . . . . . . . . . . . . . . . .7

iv

Cited Authorities

Page

Ca rol Ha rdy Vincent , Cong. Rsch. Ser v.,

RL33531, Land and Water Conservation

Fund: Over view, Funding Histor y, and

Issues (2019), https://crsreports.congress.

gov/product/pdf/RL/RL33531 . . . . . . . . . . . . . . . . . .8

Marcelo Azebedo et al., Lithium and Cobalt:

A Tale of T wo Commodities, McK insey

Consulting (Jun. 22, 2022), https://w w w.

mckinsey.com/industries/metals-and-mining/

our-insights/lithium-and-cobalt-a-tale-of-twocommodities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

1

INTEREST OF AMICUS CURIAE

ConservAmerica Inc. is a 501(c)(3) organization

focused on addressing conservation, environmental, and

energy challenges through market-based solutions.1 Our

core mission is to advocate for sound laws and public

policies that produce clean air, clean and safe water, and

healthy public lands. ConservAmerica promotes wise

management of our nation’s public lands and resources

through responsible stewardship, rule of law, and holding

polluters responsible for environmental pollution and

degradation.

ConservAmerica promotes sound energy policies

based on sound science and an understanding that policies

that too narrowly focus on one goal or one market may

not make sense or may be counter-productive when

viewed and analyzed from a holistic environmental

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environmental goals is through policies that encourage

competitive markets, private investment, and expanded

trade. ConservAmerica opposes policies and approaches

that impose centralized regulations that place an undue

burden on the economy without delivering measurable

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1. Pursuant to Rule 37.6, amicus curiae states that no part of

this brief was authored by counsel for any party and no person or

entity other than amicus curiae made any monetary contribution

to the preparation and submission of the brief.

2

SUMMARY OF ARGUMENT

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lacked Article III standing to challenge EPA’s waiver

under Section 209 of the Clean Air Act granting the State of

California authority to impose its own emission standards.

It is common sense, if not at least predictable, that

California’s regulations would adversely affect Petitioner’s

property and business interests, and that vacating EPA’s

waiver would have the opposite effect. Limiting standing

to directly regulated auto manufacturers would fail to

protect legitimate third party interests.

Petitioners’ challenge to EPA’s waiver should be heard

on the merits in order to determine whether the waiver

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injures the economy, private property rights, and

consumer choice, all of which ConservAmerica believes

are essential to responsible environmental stewardship.

ARGUMENT

I.

Limiting Regulatory Challenges To Directly

Regulated Parties Would Fail To Protect Legitimate

Third Party Interests

The effects of the subject regulatory actions by

EPA and California clearly extend well beyond directly

regulated automobile manufacturers to liquid fuel

manufacturers like Petitioner and other inextricably

intertw ined upstream and downstream A merican

businesses. Indeed, that is, at least in part, their intended

purpose, and Petitioners note that the record includes

several such admissions by Respondents. See, e.g.,

3

Petitioners’ Brief at 29 (“ . . . California predicted that

‘[t]he oil and gas industry, fuel providers, and service

stations are likely to be the most adversely affected

by the proposed Advanced Clean Cars program due to

substantial reductions in demand for gasoline.’”)

This and other Courts have consistently applied

common sense when determining third party standing

and redressability. Article III standing requires that a

plaintiff suffer a concrete injury that is fairly traceable

to the challenged government action, and that the “injury

will be redressed by a favorable decision.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also

Petitioners’ Brief at 19. As Petitioners note, then-Judge

Kavanaugh explained that if “the Government prohibits

or impedes Company A from using Company B’s product,”

there is “ordinarily little question” that Company B has

standing, since Company B’s product is the very “object”

of the regulation. Petitioner’s Brief at 28 (quoting Energy

Future Coal. v. EPA, 793 F.3d 141, 144 (D.C. Cir. 2015)).

Petitioners describe several situations where courts

have granted standing to third parties, such as ranchers

challenging a U.S. Fish and Wildlife Service biological

opinion that would obviously have resulted in reduced

ZDWHU ÁRZ IURP UHVHUYRLUV Bennett v. Spear, 520 U.S.

154, 159-60 (1997); private schools challenging an Oregon

law that would have prohibited parents from sending

their children to those schools, Pierce v. Society of the

Sisters of the Holy Names of Jesus and Mary, 268 U.S.

510, 534 (1925); and a broadcasting network challenging

a regulation that would have prohibited licensees from

doing business with the network, CBS v. United States,

316 U.S. 407, 421-23 (1942).

4

The D.C. Circuit, however, seems to inconsistently

apply its own strict redressability requirement. It fairly

recently agreed that a conservation group established

redressability where it petitioned the court to invalidate

registrations that EPA granted to several pesticide

manufacturers, reasoning that new labeling requirements

would “pose less risk to the wildlife that [individual

conservation group members] seek to study, observe,

and appreciate.” Ctr. For Biological Diversity v. EPA,

56 F.4th 55, 69 (D.C. Cir. 2022). But see Food & Water

Watch v. United States Dep’t of Agric., 1 F.4th 1112

(D.C. Cir. 2021) (environmental group lacked standing

in a NEPA challenge to USDA farm loan demanding an

environmental impact statement for an already existing

chicken farm). Indeed, this Court has taken a broad view

of standing when it has been based on climate change, see

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

standing to force EPA to regulate motor vehicle emissions

tied to global warming), and even injury to recreational

and aesthetic interests, see Friends of the Earth, Inc.

v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 201

(2000) (Scalia, J., dissenting) (“By accepting plaintiffs’

vague, contradictory, and unsubstantiated allegations

of ‘concern’ about the environment as adequate to prove

injury in fact, and accepting them even in the face of

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harmed, the Court makes the injury-in-fact requirement

a sham.”). Respondents here have demonstrated at least

the same level of injury, causation, and redressability to

satisfy Article III’s standing requirements.

By contrast, continued ambiguity about California’s

regulatory emissions scheme is even more pronounced

for Petitioners and similar third parties, including

5

ConservAmerica. California’s effort to stuff the square

peg of climate change into the round hole of California’s

Clean Air Act exemption meant to address local smog in

the 1970s—and EPA’s intermittent support of that effort

depending on various Administrations—have translated

to a game of ping-pong that deprives auto manufacturers

and related upstream and downstream businesses of

necessary stability and predictability.

ConservAmerica acknowledges that courts require

injury, causation, and redressability in order to avoid

speculative third party actions and advisory opinions.

That is not the case here. Petitioners have established

that the EPA’s waiver grant would cause injury to their

businesses—if not by Respondents’ own admissions and

obvious common sense, then as a predictable effect of

governmental action. Limiting standing to the directly

regulated automakers would deprive Petitioners of

recourse.

II. The Challenged Regulatory Action Is Contrary To

ConservAmerica’s Interests

Petitioners’ challenge to EPA’s waiver is consistent

with the interests of ConservAmerica, which promotes

wise management of our nation’s public lands and

resources through responsible stewardship, rule of law,

and holding polluters responsible for environmental

pollution and degradation. ConservAmerica promotes

sound energy policies based on sound science and a holistic

approach to addressing our Nation’s environmental issues.

ConservAmerica opposes policies and approaches, such as

EPA’s waiver here, that impose centralized regulations

and place an undue burden on the economy without

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6

There is a clear disconnect between California’s

regulatory overreach (and EPA’s intermittent complicity)

and its stated goal of reducing the impacts of global

climate change. The available science does not show that

the rapid increase in the use of electric vehicles in place

of gas-powered vehicles is “needed” to reduce California’s

greenhouse gas emissions.

Conser vAmerica recognizes that fully electric

vehicles will likely play an important role in reducing

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that a rapid, wholesale move away from gasoline powered

vehicles to fully electric vehicles may not achieve the

EHQHÀWV IUHTXHQWO\WRXWHG 2 In the short term, gasoline

powered vehicles can achieve similar reductions to

electric vehicles when the impacts of the additional

emissions that occur in the production of electric vehicles

is considered. Additionally, picking one technology now

over all other technologies forecloses the possibility of

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A rapid switch to electric vehicles may also cause

detrimental environmental impacts that have not been

adequately considered by California or the EPA. While

electric vehicles may have zero tailpipe emissions, the

activities necessary to produce electric vehicles generate

significant greenhouse gas emission over their full

2. See Todd Johnston, “Slow Down: The Case for Technology

Neutral Transportation Policy,” ConservAmerica (Dec. 10, 2020),

https://conservamerica.org/report-highlights-importance-ofpolicy-neutrality-in-decarbonizing-transportation-sector/.

7

lifecycle—meaning the emissions generated from mining

metal ores to vehicle salvage. 3 Further, evidence of the

widespread environmental impacts from meeting even

the current demand for electric vehicles can already be

seen. An electric vehicle mandate would require sharply

increasing the demand for the raw materials needed in

their production which could have detrimental global

environmental impacts. Lithium and cobalt, the two

minerals essential for the manufacture of these batteries,

are found in only a limited number of locations globally.4

More than 65 percent of global production of cobalt is

concentrated in the Democratic Republic of the Congo.

China dominates the global production of lithium-ion

batteries and their precursor materials, especially

graphite. 5 China’s graphite production has notoriously

contributed to significant pollution and health risks,

3. See also John Heywood & Don MacKenzie, On the Road

Toward 2050: Potential for Substantial Reduction in LightDuty Vehicle Energy Use and Greenhouse Gas Emissions,

Massachusetts Institute of Technology, https://energy.mit.edu/

wp-content/uploads/2015/12/MITEI-RP-2015-001.pdf.

4. Marcelo Azebedo et al., Lithium and Cobalt: A Tale of

Two Commodities, McKinsey Consulting (Jun. 22, 2022), https://

www.mckinsey.com/industries/metals-and-mining/our-insights/

lithium-and-cobalt-a-tale-of-two-commodities.

5. Published on July 8, 2024, a peer-reviewed study also

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used in lithium ion batteries that are essential to the clean energy

transition present a threat to the environment and human health

as the nascent industry scales up. Guelfo, J.L., Ferguson, P.L.,

Beck, J. et al. Lithium-ion battery components are at the nexus

of sustainable energy and environmental release of per- and

SRO\ÁXRURDON\OVXEVWDQFHVNat Commun 15, 5548 (2024), https://

doi.org/10.1038/s41467-024-49753-5

8

including airborne graphite dust and hydrochloric acid

that can leak into streams and groundwater.

The full lifecycle environmental impacts from electric

vehicle production should have been considered by EPA.

California’s reduced tailpipe emissions do not justify the

widespread global environmental and societal impacts

that will likely result if EPA’s federal preemption waiver

for California is upheld. Only by considering the merits

of Petitioners’ challenge can these important issues be

decided.

ConservAmerica also champions conservation and

private property rights as a means to promote responsible

environmental stewardship, and it recognizes the selfevident fact that a strong and predictable economy

promotes a healthy environment. Nearly all of the up to

$900 million in annual funding for the U.S. Treasury’s

Land and Water Conservation Fund6 that supports state

conservation plans is derived from oil and gas lease

revenues—funding that would be adversely affected by

mandating electric vehicles. Allowing the government

to put its thumb on the scale to force electric vehicles

on American consumers is not only environmentally

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and projects, deprives consumers of choice in something

as basic as what car to drive, and it adversely affects our

economy and the valid business and property interests of

directly regulated and clearly related third parties, alike.

6. See Carol Hardy Vincent, Cong. Rsch. Serv., RL33531,

Land and Water Conservation Fund: Overview, Funding History,

and Issues (2019), https://crsreports.congress.gov/product/pdf/

RL/RL33531

9

III. It Is Important That Petitioners Be Heard On the

Merits

Courts should not invent additional jurisdictional

bars to reviewing governmental regulatory action. In

the opinion that is before this Court, the D.C. Circuit

noted that in its earlier denial on mootness grounds of

a challenge by automobile dealers to EPA’s prior waiver

grant to California for model years 2009 through 2016,

it had “expressed serious doubt that the petitioners had

met their burden of demonstrating redressability.” Ohio

v. EPA, 98 F.4th 288, 305 (D.C. Cir. 2024) (citing Chamber

of Commerce v. EPA, 642 F.3d 192, 205 (D.C. Cir. 2011)).

The Circuit explained that the auto dealers “were not

directly subject to the waiver.” Id. If the Court refuses to

acknowledge the obvious reality that regulations dictating

the types of cars that can be manufactured and sold have

a direct impact on fuel sellers here—and even the car

dealers ZKR VHOO WKRVH FDUV³LW LV GLIÀFXOW WR WKLQN RI D

third party that could possibly have standing to challenge

the regulatory action.

Petitioners have clearly demonstrated that EPA’s

waiver has caused (or at a minimum predictably will

cause) damage to their businesses, and it logically follows

that removing that cause by vacating EPA’s action will

redress that harm. Invoking a tortured reading of

Article III standing’s redressability requirement to avoid

consideration of the merits results in perpetual ambiguity

that is in no one’s interest.

10

CONCLUSION

This Court should require that the merits of

Petitioners’ challenge to EPA’s waiver be fully heard and

adjudicated.

Respectfully submitted,

JOHN A. SHEEHAN

BRENT FEWELL

Counsel of Record

ConservAmerica

JOHN IRVING

1455 Pennsylvania Avenue,

Earth and Water Law, LLC

NW, Suite 400

1455 Pennsylvania Avenue, NW, Washington, DC 20001

Suite 400

Washington, DC 20001

(301) 980-5032

john.sheehan@earthandwatergroup.com

Counsel for ConservAmerica, Amicus Curiae