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

Supreme Court briefFeb 3, 2025

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No. 24-7

IN THE

Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

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 OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA,

AMERICAN AUTOMOTIVE LEASING

ASSOCIATION, AMERICAN CAR RENTAL

ASSOCIATION, ASSOCIATED GENERAL

CONTRACTORS OF AMERICA, INC., NATIONAL

MINING ASSOCIATION, NATIONAL RETAIL

FEDERATION, AND TRUCK RENTING AND

LEASING ASSOCIATION AS AMICI CURIAE

SUPPORTING PETITIONERS

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(Full counsel listing on

signature page)

JAIME A. SANTOS

Counsel of Record

WILLIAM M. JAY

BENJAMIN HAYES

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

(202) 346-4000

jsantos@goodwinlaw.com

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT .................................... 5

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

The D.C. Circuit’s decision imposes

artificial barriers to judicial review of

agency action. ....................................................... 8

A. Businesses should be able to obtain

judicial review of agency action that

predictably harms them. ............................... 9

B. Common sense and basic economics

confirm that an order vacating EPA’s

waiver will redress petitioners’

injuries. ............... ........................................ 11

II. The D.C. Circuit’s cramped view of

redressability erodes effective judicial

review of agency action and warrants

reversal. .............................................................. 16

CONCLUSION ......................................................... 26

TABLE OF AUTHORITIES

Page(s)

Cases:

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ..................................... 16, 18

Bennett v. Spear,

520 U.S. 154 (1997) ..................................... 10, 19

Bowen v. Massachusetts,

487 U.S. 879 (1988) ........................................... 17

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 17

Corner Post, Inc. v. Bd. of Governors of the

Fed. Rsrv. Sys.,

603 U.S. 799 (2024) ... 7, 16, 18, 19, 20, 21, 22, 23

Dep’t of Commerce v. New York,

588 U.S. 752 (2019) ............. 6, 7, 9, 10, 12, 13, 14

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ............................... 11, 15, 20

Free Enter. Fund v. Pub. Co. Acct. Oversight

Bd.,

561 U.S. 477 (2010) ........................................... 17

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

Servs. (TOC), Inc.,

528 U.S. 167 (2000) ........................................... 15

iii

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ........................................... 18

Honeywell International Inc. v. EPA,

374 F.3d 1363 (D.C. Cir. 2004),

withdrawn in part on other grounds,

393 F.3d 1315 (D.C. Cir. 2005) ......................... 22

Kisor v. Wilkie,

588 U.S. 558 (2019) ........................................... 17

La. Energy & Power Auth. v. FERC,

141 F.3d 364 (D.C. Cir. 1998) ........................... 22

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................. 9, 13, 19

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ...................... 16, 18

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................... 13

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ............................................. 22

Murthy v. Missouri,

603 U.S. 43 (2024) ....................................... 11, 13

National Credit Union Administration v.

First National Bank & Trust Co.,

522 U.S. 479 (1998) ........................................... 21

Ohio v. EPA,

98 F.4th 288 (D.C. Cir. 2024) ............................. 5

Ohio v. EPA,

No. 2:15-cv-2467, 2022 WL 866273

(S.D. Ohio Mar. 23, 2022) ................................. 23

Reno v. Cath. Soc. Servs., Inc.,

509 U.S. 43 (1993) ............................................. 18

Richards v. Jefferson Cnty.,

517 U.S. 793 (1996) ..................................... 18, 19

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ..................................... 17, 18

Simon v. E. Ky. Welfare Rts. Org.,

426 U.S. 26 (1976) ............................................. 18

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ..................................... 5, 9, 13

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ........................................... 13

Statutes:

42 U.S.C. § 7543(a)-(b) ........................................... 24

42 U.S.C. § 7543(b)(1)(B) ....................................... 24

Regulations:

78 Fed. Reg. 2,112 (Jan. 9, 2013) ........................... 12

87 Fed. Reg. 14,332 (Mar. 14, 2022) ................ 12, 14

Other Authorities:

Cal. Air Res. Bd., Low-Emission Vehicle

(LEV III) Program,

https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-carsprogram/lev-program/low-emissionvehicle-lev-iii-program ...................................... 12

Cal. Air Res. Bd., Zero-Emission Vehicle

Program, https://ww2.arb.ca.gov/ourwork/programs/zero-emission-vehicleprogram/about ................................................... 12

National Archives, Federal Register & CFR

Statistics,

https://www.federalregister.gov/readeraids/federal-register-statistics .......................... 17

INTEREST OF THE AMICI CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. The

Chamber directly represents approximately 300,000

members and indirectly represents the interests of

more than 3 million companies and professional organizations of every size, in every industry sector, and

from every region of the country. An important function of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases, like this

one, that raise issues of concern to the Nation’s business community.

The American Automotive Leasing Association

(“AALA”) is a national trade organization that represents commercial automotive fleet leasing companies.

AALA members own and manage more than 3.5 million vehicles, which are leased to small businesses,

nonprofit organizations, government entities, and corporations that usually have smaller divisions or franchises in all 50 states. These vehicles range from passenger cars to cargo vans and trucks that are customized and outfitted to fit business purposes, from electrical and plumbing repair and telecommunications installation to wholesale food and beverage distribution

and fuel delivery. Fleet leasing companies make businesses of all sizes more competitive by allowing customers to focus on their core business activities rather

than managing their vehicle fleets.

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

and no entity or person, aside from amici curiae, their members,

or their counsel, made any monetary contribution intended to

fund the preparation or submission of this brief.

The American Car Rental Association (“ACRA”) is

the national representative for over 98% of our nation’s

car rental industry. ACRA’s membership consists of

more than 300 car rental companies, including nationwide rental car companies, along with many system

licensees and franchisees and mid-size, regional and

independent car rental companies. ACRA members

have over 2.1 million registered vehicles in service in

the United States, with fleets ranging in size from ten

cars to one million cars, and employ more than 160,000

workers at rental locations in nearly every county and

in every State across the nation.

The Associated General Contractors of America,

Inc. (“AGC of America”) is the nation’s largest and

most diverse trade association in the commercial construction industry, now representing more than 28,000

member companies, that include general contractors,

specialty contractors, and service providers and suppliers to the industry through a nationwide network of

chapters in all 50 states, the District of Columbia, and

Puerto Rico. AGC of America represents both unionand open-shop employers engaged in building, heavy,

civil, industrial, utility, and other construction for both

public and private property owners and developers.

AGC of America works to ensure the continued success

of the commercial construction industry by advocating

for federal, state, and local measures that support the

industry; providing education and training for member

firms; and connecting member firms with resources

needed to be successful businesses and responsible

corporate citizens. The association also strives to

maintain its members’ longstanding commitment to

skill, integrity and responsibility.

The National Mining Association (“NMA”), based in

Washington, DC, is a national trade association that

serves as the voice of the mining industry. The NMA

represents over 250 members involved in every aspect

of mining, from producers and equipment manufacturers to service providers. The NMA’s members produce

most of America’s coal, metals, and industrial and agricultural minerals. America’s mining industry supplies the essential materials necessary for nearly every

sector of our economy—from technology and healthcare

to energy, transportation, infrastructure, and national

security—all delivered under world-leading environmental, safety, and labor standards. The NMA works

to ensure America has secure and reliable supply

chains, abundant and affordable energy, and the American-sourced materials necessary for U.S. manufacturing, national security, and economic security. A core

mission of the NMA is working with Congress and regulators to advocate for public policies that will help

America fully and responsibly utilize its vast natural

resources. The NMA also has a long history of representing the mining industry in front of the judiciary.

The National Retail Federation (“NRF”) is the

world’s largest retail trade association, representing

discount and department stores, home goods and specialty stores, Main Street merchants, grocers, wholesalers, chain restaurants, and internet retailers from

the United States and more than 45 countries. NRF

empowers the industry that powers the economy. Retail is the nation’s largest private-sector employer, contributing $5.3 trillion to annual GDP and supporting

one in four U.S. jobs—55 million working Americans.

For over a century, NRF has been a voice for every retailer and every retail job, educating and communi-

cating the powerful impact retail has on local communities and global economies.

The Truck Renting and Leasing Association

(“TRALA”) is a voluntary non-profit trade association

founded in 1978 to serve as the unified and focused

voice for the truck renting and leasing industry.

TRALA’s mission is to foster a positive legal and regulatory climate within which companies engaged in leasing and renting vehicles and trailers, as well as related

businesses, can compete without discrimination in the

North American marketplace. TRALA’s nearly 500

members engage primarily in commercial truck renting

and leasing, vehicle finance leasing, and consumer

truck rental. Its members also include companies with

motor-carrier operations and more than one hundred

supplier member companies that offer equipment,

products, and services to TRALA renting and leasing

company members. TRALA members purchase approximately 30% of all over-the-road Class 2-8 trucks

and tractors in the United States annually, and today

approximately one in every four trucks on the road, regardless of size, is a rented or leased vehicle.

Amici’s members are frequently injured by agency

action that does not directly regulate them but that

has a significant impact on their operations and revenues. In those situations, amici and their members often seek redress for such injuries in federal court.

Amici therefore have an interest in ensuring that artificial barriers to obtaining judicial review of agency actions that harm their members are not smuggled in

under the guise of Article III.2

2 Amici note that affected businesses do not have a unified view of

the underlying merits of this litigation, which are not at issue be-

SUMMARY OF ARGUMENT

The decision below distorts Article III’s redressability requirement beyond recognition—ignoring commonsense inferences based on predictable economic consequences. The court of appeals’ misguided approach

would, as a matter of constitutional law, foreclose a

significant portion of everyday legal challenges to

agency overreach. This Court should reverse.

A party wishing to challenge agency action in federal

court must show not only that it was injured by the

agency action, but that the federal court can “redress

the alleged injury.” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 103 (1998). This redressability requirement helps ensure that the correct parties are before the court and that the court’s decision could have

some real-world benefit for the plaintiff.

Individuals and businesses can suffer a redressable

injury from a regulation even if it does not directly

regulate them. Indeed, in many cases agencies do not

just expect that regulations will have predictable effects on individuals or businesses other than the regulated parties, they affirmatively intend those effects.

Individuals or businesses who are indirectly harmed

often will be well positioned to assert legal challenges

that keep agencies within their statutory bounds.

Sometimes they will even be the best positioned to

bring such a challenge, especially when the directly

fore this Court. For example, various vehicle manufacturers and

other business entities intervened in support of respondents in

this case, opposing various arguments that petitioners made in

attacking the regulatory decision at issue here. Ohio v. EPA, 98

F.4th 288, 299 & n.6 (D.C. Cir. 2024).

regulated parties cannot or will not challenge the

agency’s overreach.

In those types of cases, courts assess standing by

drawing common-sense inferences about the “predictable effect” of agency action on private conduct. Dep’t of

Commerce v. New York, 588 U.S. 752, 768 (2019). If

the agency action causes regulated entities to behave

in a way that injures other parties, common sense dictates that an order vacating the agency action will redress those other parties’ injuries—at least to some degree.

Those straightforward principles require reversal

here. EPA issued a preemption waiver for California’s

low-emission and zero-emission vehicle regulations,

with the explicit goal of cutting emissions through a

reduction in the consumption of the fuels that petitioners (or their members) produce and distribute. Manufacturers were required to comply with California’s

mandates by adjusting their production and pricing to

favor low-emission or zero-emission automobiles. Basic

principles of supply and demand dictate that if EPA’s

waiver is vacated—and vehicle manufacturers are free

to produce and price their vehicles according to market

forces—at least some manufacturers will produce or

sell fewer low-emission or zero-emission vehicles. Demand for the fuels petitioners (or their members) produce and distribute will increase as a result. If that

were not the natural economic consequence of vacating

the agency’s decision, then there would have been no

reason for the agency to issue its preemption waiver to

begin with. It is therefore “likely” that vacating EPA’s

waiver will redress at least some of petitioners’ (or

their members’) injuries. Dep’t of Commerce, 588 U.S.

at 766 (citation omitted). That is all redressability requires.

The D.C. Circuit refused to credit those commonsense inferences. Instead, it effectively required petitioners to obtain affidavits from vehicle manufacturers

attesting that, if EPA’s waiver were vacated, they

would alter their vehicle production or pricing in a way

that would increase demand for petitioners’ fuel products.

The D.C. Circuit’s rule threatens to preclude a substantial number of injured parties from obtaining judicial redress of their injuries. There are many valid

reasons why directly regulated entities might decide

not to challenge an agency action that adversely impacts them. Yet the D.C. Circuit’s rule converts that

decision into a bar on other parties’ ability to seek redress of their injuries. Its rule would foreclose challenges to unlawful agency action in a significant swath

of cases; indeed, “entire classes of administrative litigation … have traditionally been brought by unregulated parties.” Corner Post, Inc. v. Bd. of Governors of

the Fed. Rsrv. Sys., 603 U.S. 799, 833 (2024) (Kavanaugh, J., concurring). And unlike judicial construction of a statutory limitation on who may sue, the court

of appeals’ decision forecloses unregulated parties and

indirectly regulated parties (like petitioners here) from

bringing suit as a matter of constitutional law, which

means that Congress cannot rectify the problem simply

by amending the statute.

The D.C. Circuit’s rule also would reward bait-andswitch tactics. California, for example, insisted that

EPA’s waiver was necessary to achieve California’s goal

of lowering emissions by reducing fossil-fuel consumption. Now that the waiver has been challenged,

though, California seeks to evade judicial review by

disingenuously claiming that vacating the waiver will

have no impact on fossil-fuel consumption.

This Court should reverse the lower court’s decision

to ensure that all injured parties have a judicial forum

in which to seek redress from unlawful agency action

that is harming them.

ARGUMENT

The D.C. Circuit’s decision imposes

artificial barriers to judicial review of

agency action.

The decision below effects a dramatic distortion of

Article III jurisprudence that slams the door on a significant proportion of challenges to agency action. The

D.C. Circuit held that to show Article III redressability, petitioners had to prove that regulated third-party

automobile manufacturers would take specific actions

if EPA’s waiver were vacated. The lower court’s decision ignores both common sense and basic principles of

supply and demand. When an agency adopts a rule

that depresses demand for a product, vacating that

rule will cause demand to rebound. That is precisely

the case here. EPA and California envisioned and understood that EPA’s waiver would cause economic injury to petitioners by promoting low-emission or zeroemission vehicles that use less of the fuels that petitioners (or their members) sell and distribute. Vacating EPA’s waiver will redress that injury, at least in

part—which is all Article III requires.

Businesses should be able to obtain

judicial review of agency action that

predictably harms them.

Article III requires petitioners to show that their injuries are “likely” to be “redressed by a favorable ruling” from a federal court. Dep’t of Commerce, 588 U.S.

at 766 (citation omitted). This requirement helps to

avoid advisory opinions by ensuring that the correct

parties are before the court, see, e.g., Lujan v. Defs. of

Wildlife, 504 U.S. 555, 568 (1992), and that the court’s

opinion could alleviate that injury in at least some

way, see, e.g., Steel Co., 523 U.S. at 106. Redressability

can be shown by drawing common-sense inferences

from the natural, predictable effects of government action or its removal. Those common-sense inferences

appropriately ensure that judicial review is limited to

actual cases or controversies, but without closing the

courthouse doors to those injured by agency action.

Department of Commerce illustrates this understanding of redressability. There, the Court held that

States had standing to challenge the reinstatement of a

citizenship question on the census questionnaire. 588

U.S. at 766-768. Reinstating the question would deter

some noncitizens from responding to the census and, in

turn, would cause States “a number of injuries,” including the loss of federal funds “distributed on the basis of

state population.” Id. at 766-767. The Court rejected

the argument that this injury was too “speculat[ive]”

because it “depend[ed] on the independent action of

third parties choosing to violate their legal duty to respond to the census.” Id. at 767-768. “[H]istorically,”

the Court explained, noncitizens “responded to the census at lower rates … at least in part” due to “reluctance

to answer a citizenship question.” Id. at 768. The

States’ “theory of standing” thus appropriately “relie[d] … on the predictable effect of Government action

on the decisions of third parties”: historical evidence

substantiated the inference that a citizenship question

would reduce the response rate. Id. (emphasis added).

And because the resulting injury was “sufficiently concrete and imminent,” there was “no dispute that a ruling in favor of [the States] would redress that harm,”

id. at 767—i.e., more noncitizens would respond to the

census and the States would receive more federal

funds.

The “effect” of vacating an agency action is even

more “predictable” when the injury is the intended or

obviously foreseeable consequence of that action—not

just collateral damage. Suppose, for example, that in

an effort to curb consumption of high-sugar beverages,

California banned retailers from selling soft drinks in

cups bigger than 20 ounces, despite significant customer demand for Big Gulps. The effect would be obvious:

soft-drink producers would sell less soda syrup in California. If the ban were overturned, then at least some

retailers would be expected to again offer larger-sized

sodas—given historic customer demand—which would

repair at least some of the soft-drink producers’ injuries. Accord Bennett v. Spear, 520 U.S. 154, 168-171

(1997) (finding injury-in-fact and redressability when

the unregulated plaintiff’s injury followed from the “coercive effect” of government action “upon the action of

someone else”).

Businesses should be able to challenge agency action

that harms the products they sell, whether or not the

agency explicitly targets those products or the businesses themselves, particularly when the stated goal or

clearly foreseeable outcome of the government regula-

tion is to decrease consumer demand for those products. That economic harm is a classic Article III injury;

setting aside the government action causing that injury is classic judicial redress. It makes no sense to bar

these injured parties from coming into court unless

they can convince their customers—U.S. retailers—to

submit declarations attesting to the business decisions

those customers would make if the government action

were vacated. Nor has this Court ever required such

an unreasonably high evidentiary showing to establish

redressability. To the contrary: just last Term this

Court eschewed any desire to adopt an “elevated

standard for redressability.’” Murthy v. Missouri, 603

U.S. 43, 74 n.11 (2024) (citation omitted).

In cases like these, redressability does not require a

crystal ball; it requires common sense. Once economic

injury caused by regulation is established, redressability is a light lift, given that it is the mirror image of the

injury that the unregulated or indirectly regulated entity experienced. See FDA v. All. for Hippocratic Med.,

602 U.S. 367, 380-381 (2024) (explaining that “[i]f a defendant’s action causes an injury, enjoining the action … will typically redress that injury,” and “[s]o the

two key questions in most standing disputes are injury

in fact and causation”).

Common sense and basic economics

confirm that an order vacating EPA’s

waiver will redress petitioners’

injuries.

An order vacating EPA’s waiver will redress petitioners’ injuries. California’s Zero-Emission Vehicle

program dictates that a minimum percentage of total

vehicles sold into California by certain manufacturers

must be zero-emission (at least up through model year

2025), see Cal. Air Res. Bd., Zero-Emission Vehicle Program3, and its Low-Emission Vehicle program requires

manufacturers of certain vehicles to meet “stringent

emission standards” for vehicles, see Cal. Air Res. Bd.,

Low-Emission Vehicle (LEV III) Program4; see also 78

Fed. Reg. 2,112, 2,114, 2,119 (Jan. 9, 2013). A reduction in demand for the fuels made or distributed by petitioners was not an unforeseen byproduct of California’s programs. California confirmed as much when it

asked for the waiver—representing to EPA that “net

upstream emissions [would be] reduced through the

increased use of electricity and concomitant reductions

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

14, 2022) (emphasis added) (quoting 2012 Waiver Request, EPA-HQ-OAR-2012-0562-0004, at 15-16). Predictably, automakers responded to California’s mandates by altering their production plans and vehicle

pricing to conform to California’s quotas. Pet. App.

12a.

Basic economics and common sense teach that a

court order vacating EPA’s waiver would redress the

injury that the waiver foreseeably inflicted. Without

EPA’s waiver, the government compulsion that forced

automakers to alter their production and pricing to adhere to California’s requirements disappears. And

without that market-altering compulsion, it is “likely”

that at least some automakers would move back at

least partway toward the market-driven production

and pricing they set before California’s artificial targets took effect. Dep’t of Commerce, 588 U.S. at 766.

3 https://ww2.arb.ca.gov/our-work/programs/zero-emission-

vehicle-program/about.

4 https://ww2.arb.ca.gov/our-work/programs/advanced-clean-

cars-program/lev-program/low-emission-vehicle-lev-iii-program.

Demand for the fuels petitioners produce and distribute would therefore increase as consumers purchased

more conventional vehicles than they would have if

EPA’s waiver remained in place.

To be sure, it may not be certain that all automakers

would reduce production of low-emission or zeroemission vehicles or raise those vehicles’ prices if

EPA’s waiver were vacated. But redressability does

not require a certain return to the status quo ante. See

Murthy, 603 U.S. at 74 n.11 (refusing to “hold[] plaintiffs to a ‘certainty’ standard” to satisfy redressability)

(citation omitted). It requires only that it be “likely”

that vacatur would restore some of the demand for petitioners’ fuels that EPA’s waiver is suppressing. Dep’t

of Commerce, 588 U.S. at 766. If vacatur restores only

$1 in revenue lost due to EPA’s waiver, Article III is

satisfied. See Massachusetts v. EPA, 549 U.S. 497, 526

(2007) (finding redressability when injury “would be

reduced to some extent if petitioners received the relief

they seek” (emphasis added)); accord Uzuegbunam v.

Preczewski, 592 U.S. 279, 291 (2021) (availability of

nominal damages satisfies redressability). Basic market forces compel that conclusion here.

This case thus falls squarely within this Court’s established redressability doctrine. Petitioners are not

seeking relief from the wrong party; they have sued the

agency that issued the waiver that caused their injury.

Cf. Lujan, 504 U.S. at 568 (no redressability where

“agencies funding the projects” causing injury “were

not parties to the case”). Nor is there any mismatch

between the relief petitioners request and the injury

they claim; they seek vacatur of the EPA waiver that

injured them. Cf. Steel Co., 523 U.S. at 107 (“Relief

that does not remedy the injury suffered cannot boot-

strap a plaintiff into federal court”). Redressability requires nothing more.

In fact, the case for redressability is even stronger

here than it was in Department of Commerce. There,

the States established standing—both injury and redressability—without having to prove that the agency

added a citizenship question to the census with the

goal of suppressing census responses, or that fewer

census responses was the necessary consequence of

adding a citizenship question. See 588 U.S. at 766-768.

Where, as here, a “reduction[] in fuel production” is the

necessary (and, indeed, intended) consequence of California’s mandates, 87 Fed. Reg. at 14,364 (citation

omitted), standing should be easier to establish. The

natural and logical consequence of an order blocking

California’s mandates (by vacating EPA’s waiver) is

the reversal of that reduction.

The court of appeals, however, eschewed commonsense inferences in favor of a rigid and heightened evidentiary standard. It held that petitioners had not

shown redressability because they did not produce evidence proving what vehicle manufacturers would do in

the event EPA’s waiver is vacated. In essence, the

court held that petitioners should have solicited affidavits from these automakers attesting to their future

business plans if EPA’s waiver is vacated. Pet. App.

24a-25a. Yet the D.C. Circuit identified no decision of

this Court imposing such a heightened evidentiary

burden that effectively makes an injured party’s access

to federal court contingent on third parties’ litigation

decisions. And no such case exists. See Brief for Petitioners at 25-29, 31-37. At the same time, the court of

appeals noted EPA’s statement that some, but not all,

vehicle manufacturers had voluntarily agreed to com-

ply with California’s requirements after EPA’s 2013

waiver was rescinded, see Pet. App. 13a-14a, and the

court conceded the “possib[ility] that manufacturers

could change their prices without modifying their production cycles,” which “may redress Petitioners’ injuries.” Pet. App. 24a (emphasis added). But the court of

appeals ignored the common-sense inference of redressability that follows from these facts.

Instead, the D.C. Circuit premised its standing decision in part on its belief that automobile manufacturers would not have sufficient time to alter their vehicle

specifications even if EPA’s waiver were vacated, on

the theory that the waiver only applies up through

model year 2025 vehicles. Pet. App. 22a-23a. But

standing is determined at the time suit is filed, Friends

of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 167, 191 (2000), not at the time of a court’s

decision years later. Here, petitioners filed their petition for review 60 days after EPA’s reinstatement of its

waiver in March 2022, Brief for Petitioners at 12—at

which point EPA’s waiver would be in effect for several

years more. If the limited time now remaining on

EPA’s waiver—two years after suit was filed—has jurisdictional implications, it would be as a matter of

mootness, not as a matter of standing. And there are

strong arguments that this case is not moot and would

not be mooted by the expiration of EPA’s waiver. See

Brief for Petitioners at 39-41.

To be sure, establishing standing is generally easier

for a regulated party. All. for Hippocratic Med., 602

U.S. at 382. But that does not mean establishing

standing is impossible for non-regulated or indirectly

regulated parties. Here, EPA granted California a

waiver with the acknowledged consequence of reducing

demand for the fuels petitioners make and distribute—

causing petitioners injury. A court order vacating that

agency action is likely to redress at least some of that

injury going forward. That is more than sufficient for

redressability. By ignoring common-sense inferences

derived from basic principles of supply and demand,

the court of appeals departed from this Court’s precedents.

II.

The D.C. Circuit’s cramped view of

redressability erodes effective judicial

review of agency action and warrants

reversal.

The D.C. Circuit’s decision not only misapplies the

law, it also undermines judicial review. The court’s rationale threatens to insulate broad swaths of agency

action from judicial scrutiny as a matter of constitutional law, and will incentivize the manipulation of

federal courts’ jurisdiction.

A. Judicial review of agency action is vitally important. More than two centuries ago, this Court proclaimed that “[t]he very essence of civil liberty … consists in the right of every individual to claim the protection of the laws.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 163 (1803). Congress later enshrined

that principle in the APA’s judicial review provision,

which establishes a “‘basic presumption’ that anyone

injured by agency action should have access to judicial

review.” Corner Post, 603 U.S. at 824 (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 140 (1967)). This review serves both a corrective and prophylactic purpose.

It enables courts to overturn unlawful agency action

(and redress injuries those actions caused), and it deters errant agency action—encouraging agencies to

stay within their statutory authority, follow proper

procedures, carefully review the facts, and employ

sound judgment in promulgating and enforcing their

many rules and regulations. See, e.g., Bowen v. Massachusetts, 487 U.S. 879, 908 n.46 (1988) (judicial review

constrains the exercise of discretionary power by administrative agencies and promotes fidelity to statutory requirements).

The need for meaningful judicial review of agency

action is especially acute in light of the extraordinary

growth in the size and power of the administrative

state. The national government now houses a “vast

and varied federal bureaucracy” that “wields vast power … touch[ing] almost every aspect of daily life,” Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.

477, 499 (2010), and has “expan[ded] … into new territories the Framers could scarcely have imagined,”

Seila Law LLC v. CFPB, 591 U.S. 197, 231 (2020).

Much of the federal government’s operation now

consists of “hundreds of federal agencies poking into

every nook and cranny of daily life.” City of Arlington

v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting). To accomplish this, agencies “produce[]

reams of regulations—so many that they dwarf the

statutes enacted by Congress.” Kisor v. Wilkie, 588

U.S. 558, 629 (2019) (Gorsuch, J., concurring in the

judgment) (quotation marks omitted). And they “add

thousands more pages of regulations every year.” Id.;

see National Archives, Federal Register & CFR Statistics (showing that the CFR was less than 10,000 pages

in 1950 and now tops 100,000).5 This enormous expan5 https://www.federalregister.gov/reader-aids/federal-register-

statistics.

sion of the administrative state poses “a significant

threat to individual liberty.” Seila Law LLC, 591 U.S.

at 240 (Thomas, J., concurring in part and dissenting

in part) (citation omitted).

Judicial review is an essential check against this

threat. Marbury, 5 U.S. (1 Cranch) at 163; see also

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 65

(1976) (Brennan, J., concurring in the judgment) (“In

our modern-day society, dominated by complex legislative programs and large-scale governmental involvement in the everyday lives of all of us, judicial review

of administrative action is essential both for protection

of individuals illegally harmed by that action and to

ensure that the attainment of congressionally mandated goals is not frustrated by illegal action.” (citations

omitted)). Accordingly, this Court has consistently rejected attempts to undermine the effectiveness of judicial review of agency action.

Most directly, the Court has refused to interpret

statutes to displace the APA’s judicial review provision

without “‘clear and convincing evidence’ of congressional intent to preclude judicial review.” GuerreroLasprilla v. Barr, 589 U.S. 221, 229 (2020) (quoting

Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)).

It has also resisted efforts to undermine the effectiveness of judicial review of agency action. In Corner Post,

for example, the Court adopted an injury-accrual rule

for the APA’s six-year statute of limitations, in part because that rule “vindicates the APA’s ‘basic presumption’ that anyone injured by agency action should have

access to judicial review,” and “respects our ‘deeprooted historic tradition that everyone should have his

own day in court.’” 603 U.S. at 824 (quoting Abbott

Labs., 387 U.S. at 140, and Richards v. Jefferson Cnty.,

517 U.S. 793, 798 (1996)); see also id. at 832 (Kavanaugh, J., concurring) (“Vacatur is … essential to

fulfill the ‘basic presumption of judicial review’ for parties who have been ‘adversely affected or aggrieved’ by

federal agency action” (citation omitted)).

The Court has also resisted efforts to use Article III

to shield agency action from judicial review by disregarding the real-world effects of vacating the agency’s

action. In Bennett v. Spear, the Court held that two

irrigation districts had standing to challenge a biological opinion of the Fish and Wildlife Service that would

affect the amount of water available to them. 520 U.S.

at 157, 159, 167-168. The government argued that the

plaintiffs had not shown that the biological opinion

caused their injury or that their injury would be redressed by vacating it, because the Bureau of Reclamation, not the Service, was the ultimate decisionmaker.

Id. at 168-169. The Court rejected that argument.

Although the biological opinion “theoretically serve[d]

an ‘advisory function,’” the Court looked to the real-life

“coercive effect” it had on the Bureau of Reclamation’s

decisionmaking to conclude that vacating the biological

opinion would redress the plaintiffs’ injuries. Id. at

169-171 (citation omitted).

B. The D.C. Circuit’s decision undermines this important safeguard against unlawful agency action. To

be sure, Article III’s requirements—including redressability—must be satisfied for any suit to be heard in

federal court. Lujan, 504 U.S. at 560. But the paramount importance of judicial review of agency action

counsels strongly against infusing constitutional standing doctrine with heightened and (often) insurmountable evidentiary burdens that are divorced from common sense and logic. Those types of burdens are en-

tirely unnecessary to prevent “mere bystander[s]” who

lack “a personal stake in the dispute” from filing suit in

federal court, or to “assure that the legal questions

presented to the court will be resolved … in a concrete

factual context conducive to a realistic appreciation of

the consequences of judicial action.” All. for Hippocratic Med., 602 U.S. at 379-380 (citations and quotation

marks omitted). They instead erect a barrier to judicial redress for entities that have clearly been harmed

by agency action.

Forcing everyone else who is injured to rely on directly regulated entities’ cooperation to challenge agency action will shield significant amounts of agency action from judicial scrutiny. Sometimes businesses that

are not directly regulated by agency action are the

most harmed by it, but those that are regulated have

no interest in mounting a challenge of their own or facilitating one brought by others.

After all, the interests of regulated entities do not

always align with the interests of those that are not

directly regulated but nonetheless harmed. See Pet.

20-21. Regulated parties may sometimes have powerful incentives to acquiesce in agency regulations that

an unregulated entity or indirectly regulated entity

wishes to challenge. Some regulations may be preferable to other likely alternatives (including potential legislative alternatives). Some may be leavened by a valuable benefit or incentive (like federal funding). Other

regulations may give the regulated parties a market

advantage that may dissuade them from bringing suit,

such as by creating barriers to entry by competitors or

reducing the marketability of a competitor’s product or

service. Accord Corner Post, 603 U.S. at 833-834 (Kavanaugh, J., concurring). And in many cases, the sim-

ple act of expressing public opposition to government

regulation may impose heavy political or other costs on

a company.

For any of these reasons, regulated entities may

have limited or no appetite for challenging (or facilitating the challenge of) the agency action, especially with

regard to harm suffered by unregulated or indirectly

regulated entities. Nonetheless, the logic of the D.C.

Circuit’s ruling requires those plainly injured entities

to obtain the active, overt support of the directly regulated companies. That dynamic creates a substantial

barrier to judicial review that is not compelled by the

Constitution or this Court’s precedents.

If not corrected, that barrier will block a substantial

number of challenges to agency action. Lawsuits by

unregulated entities are hardly uncommon; to the contrary, unregulated parties “often will sue under the

APA to challenge an allegedly unlawful agency rule

that regulates others but also has adverse downstream

effects on the plaintiff.” Corner Post, 603 U.S. at 826

(Kavanaugh, J., concurring). In fact, there are “entire

classes of administrative litigation that have traditionally been brought by unregulated parties.” Id. at 833.

For example, this Court and the courts of appeals

have long held that businesses have standing to challenge agency action that harms them indirectly by facilitating competition by their competitors. Corner

Post, 603 U.S. at 834 (Kavanaugh, J., concurring) (noting that competitor suits “are ubiquitous in administrative law”). That was true in National Credit Union

Administration v. First National Bank & Trust Co.,

522 U.S. 479 (1998), in which banks challenged an

agency’s interpretation of the Federal Credit Union Act

that expanded the potential market for credit unions,

to the detriment of competitor banks. Id. at 483-485.

The Court had no trouble concluding that the plaintiff

banks could sue; they “suffered an injury in fact because the [agency’s] interpretation allow[ed] persons

who might otherwise be their customers” to be customers of their credit-union competitors. Id. at 488 n.4.

Redressability was satisfied because rejecting the

agency’s interpretation would undo the benefit to the

bank’s competitors.

Similarly, Honeywell International Inc. v. EPA, 374

F.3d 1363 (D.C. Cir. 2004), withdrawn in part on other

grounds, 393 F.3d 1315 (D.C. Cir. 2005), held that

Honeywell was injured by an EPA decision approving

the use of chemicals made by its competitors. Id. at

1368-1370. “As a favorable opinion of the court could

remove the competing chemicals from the market, redressability [wa]s satisfied as well.” Id. at 1369-1370;

see also, e.g., La. Energy & Power Auth. v. FERC, 141

F.3d 364, 367 (D.C. Cir. 1998) (holding that an energy

company was injured by a FERC order benefiting its

competitor and that injury “would be redressed by a

favorable decision of this court vacating FERC’s order”).

Those cases, like this one, turn on basic economic realities—government regulation harms a business when

it makes life easier for its competitors; eliminating the

advantage will redress that injury. Accord, e.g., Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 40-44 (1983) (insurer challenge to agency rescission of vehicle safety standards);

Corner Post, 603 U.S. at 834-837 (Kavanaugh, J., concurring) (collecting additional examples of unregulated-party challenges to agency action).

The D.C. Circuit’s decision to retreat from this settled understanding thus strikes at the heart of agency

litigation, threatening to “insulate a broad swath of

agency actions from any judicial review.” Corner Post,

603 U.S. at 831 (Kavanaugh, J., concurring). And that

risk is especially high for agencies whose policies fluctuate dramatically when partisan control of the Executive Branch shifts. This is a case in point: EPA has

flip-flopped between denying a waiver and granting a

waiver each time control of the White House has shifted from one political party to another. Pet. App. 11a14a.

This dynamic can help shield agency action from judicial review, as legal challenges can be mooted by a

subsequent administration’s repeal or modification of a

challenged rule. See, e.g., Order at 1-2, In re Clean Water Act Rulemaking, No. 3:20-cv-06137 (N.D. Cal. Jan.

24, 2024), ECF No. 46 (dismissing as moot challenge to

EPA 2020 Clean Water Act rule because “the 2020

Rule is no longer in effect and has since been superseded by the 2023 Rule”); Ohio v. EPA, No. 2:15-cv-2467,

2022 WL 866273, at *1-4 (S.D. Ohio Mar. 23, 2022)

(dismissing as moot challenge to 2015 EPA “navigable

waters” rule in light of repeal by subsequent administration), appeal dismissed, No. 22-3292, 2023 WL

6458954 (6th Cir. Sept. 18, 2023). The D.C. Circuit’s

rule will only exacerbate this dynamic and further insulate agency action from judicial review by requiring

injured parties to satisfy a heightened evidentiary burden to even bring an action in the first place.

That outcome would be bad enough if it had been

accomplished by a wayward interpretation of the APA

or some other statutory judicial review provision. In

that scenario, Congress could at least fix the error.

Not so here, where the D.C. Circuit’s error imposes improper constitutional limitations on what cases the federal courts have the power to decide.

Compounding these problems, the D.C. Circuit’s rule

rewards government bait-and-switch tactics, allowing

overreaching agencies to manipulate federal-court jurisdiction to insulate themselves from any meaningful

judicial review. In this case, for example, the Clean

Air Act authorizes EPA to issue a waiver for California’s zero-emission and low-emission vehicle programs

only if the State shows it has a “need” for its own

“standards to meet compelling and extraordinary conditions.” 42 U.S.C. § 7543(a)-(b); see Pet. App. 3a-6a.

So to request and grant the waiver, California had to

argue (and EPA had to conclude) that the waiver was

necessary to reduce fossil-fuel consumption sufficient

“to meet compelling and extraordinary conditions” in

California. 42 U.S.C. § 7543(b)(1)(B); C.A. J.A. 237

(California informed EPA that the waiver was “critical

for incentivizing production and deployment of zeroemission vehicles”) (emphasis added). And to demonstrate that they had standing to intervene in this case,

California and States that chose to follow California’s

emissions standards submitted evidence explaining

that if the waiver were overturned, “additional gasoline-fueled vehicles would be sold.” Brief for Petitioners at 13 (quoting J.A. 115).

But now that it wishes to shield that same agency

decision from judicial review, California has changed

its tune. Despite previously insisting that an EPA

waiver was necessary, California now claims that the

agency’s action was not needed after all, because industry will voluntarily comply with California’s emissions standards even if they are not mandatory. Cali-

fornia cannot have it both ways. Erecting artificially

high evidentiary burdens would simply bless efforts,

like these, to insulate agency action from judicial scrutiny and deprive injured parties, like petitioners here,

of their day in court.

The D.C. Circuit’s flawed decision on Article III redressability risks closing the courthouse doors to numerous entities that have undeniably been injured by

agency action—and doing so as a constitutional matter.

That outcome breaks from this Court’s standing jurisprudence, ignores the common-sense principles on

which that jurisprudence rests, and severely undermines judicial review of agency action.

CONCLUSION

The Court should reverse the judgment of the court

of appeals.

Respectfully submitted.

JENNIFER B. DICKEY

ANDREW R. VARCOE

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

Counsel for the Chamber

of Commerce of the United

States of America

LEAH PILCONIS

ASSOCIATED GENERAL

CONTRACTORS OF

AMERICA, INC.

2300 Wilson Blvd.

Suite 300

Arlington, VA 22201

Counsel for Associated

General Contractors of

America, Inc.

February 3, 2025