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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N o. 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 THE TWO HUNDRED
FOR HOMEOWNERSHIP AS
AMICUS CURIAE IN SUPPORT OF
PETITIONERS
Rafe Petersen
Counsel of Record
Jennifer L. Hernandez
Brian C. Bunger
Holland & Knight LLP
800 17th Street, N.W., Suite 1100
Washington, D.C. 20006
202-419-2481
Rafe.Petersen@hklaw.com
Jennifer.Hernandez@hklaw.com
Brian.Bunger@hklaw.com
Counsel for Amicus Curiae
The Two Hundred for
Homeownership
February 3, 2025
i
TABLE OF CONTENTS
Page
STATEMENT OF INTEREST OF THE AMICUS
CURIAE ........................................................ 1
SUMMARY OF ARGUMENT............................. 3
ARGUMENT ....................................................... 6
I.
THE ADVANCED CLEAN CARS
REGULATION IMPOSES DISPARATE
CONSEQUENCES ON LOW-INCOME
COMMUNITIES AND COMMUNITIES OF
COLOR. ......................................................... 6
II. THE JUDGMENT BELOW ERECTS NEW
AND UNWARRANTED BARRIERS TO
CHALLENGES TO REGULATORY
ACTIONS .................................................... 16
CONCLUSION .................................................. 20
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)................................ 16, 17
Parents Protecting Our Children v. Eau
Claire Area School District,
605 U.S. __ (2024) (Alito, J.,
dissenting from denial of certiorari) ........... 17
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) ........................................ 16
Statutes
Clean Air Act
§ 177, 42 U.S.C. § 7507 .............................. 3, 5
§ 209, 42 U.S.C. § 7543(b).......................... 4, 5
§ 209(b), 42 U.S.C. § 7543(b) ......................... 3
Other Authorities
83 Fed. Reg. 42986 (September 27,
2019) ............................................................... 4
2022 Summer Reliability Assessment,
North American Electric Reliability
Corporation, May 2022,
https://www.nerc.com/pa/RAPA/ra/R
eliability%20Assessments%20DL/N
ERC_SRA_2022.pdf ..................................... 14
iii
Assembly Bill 1745: Clean Cars 2040
Act (2017-2018) .............................................. 8
California Air Resources Board’s 2022
Scoping Plan For Achieving Carbon
Neutrality, November 16, 2022,
https://ww2.arb.ca.gov/sites/default/f
iles/2022-12/2022-sp.pdf ................................ 3
California Energy Commission, 2021-
2023 Investment Plan Update for
the Clean Transportation Program,
December 17, 2021,
https://www.energy.ca.gov/publicatio
ns/2021/2021-2023-investment-planupdate-clean-transportationprogram#:~:text=This%202021%E2
%80%932023%20investment%20pla
n%20establishes%20funding%20allo
catio%20ns%20based%20on,by%20t
he%20COVID%2D19%20pandemic ...... 11, 13
California Energy Commission,
California Electric Vehicle
Infrastructure Deployment
Assessment: Senate Bill 1000 Report
Increasing Access to Electric Vehicle
Infrastructure for All, December
2020 ........................................................ 11, 12
iv
California Energy Commission, Electric
Vehicle Chargers in California
Dashboard,
https://www.energy.ca.gov/datareports/energy-almanac/zeroemission-vehicle-and-infrastructurestatistics/electric-vehicle ............................. 12
California Public Utilities Commission,
2019 Annual Affordability Report,
April 2021,
https://www.cpuc.ca.gov//media/cpuc-website/industries-andtopics/reports/2019-annualaffordability-report ........................................ 9
California Public Utilities Commission,
Order Instituting Rulemaking to
Continue Electric Integrated
Resource Planning and Related
Procurement Processes, Decision
Adopting 2021 Preferred System
Plan, Decision No. 22-02-004, Feb.
10, 2022,
https://docs.cpuc.ca.gov/PublishedDo
cs/Published/G000/M451/K412/4514
12947.PDF.................................................... 10
Executive Order N-79-20, September
23, 2020 .......................................................... 8
v
Impact of the Advanced Clean Cars II
(Internal Combustion Engine Ban)
Regulation on California Businesses,
Capitol Matrix Consulting, May 17,
2022,
https://www.arb.ca.gov/lists/comattach/477-accii2022AHcAdQBxBDZSeVc2.pdf ....................... 7, 14
Michael Manville et al., Vehicle access
and falling transit ridership:
evidence from Southern California.
TRANSPORTATION, February 3, 2022 .............. 7
Mirko Rubeis et al., Is There A Future
For Service Stations?, Boston
Consulting Group, July 12, 2019,
https://www.bcg.com/publications/20
19/service-stations-future. ........................... 15
Oils and Gas in California: The
Industry, Its Economic Contribution
and User Industries at Risk in 2017,
Los Angeles County Economic
Development Corporation, July
2019,
https://laedc.org/2019/08/27/oil-andgas-industry-in-california-2019report/ ........................................................... 15
vi
Peter Behr and Jason Plautz, Grid
monitor warns of U.S. blackouts in
'sobering report,' E&E NEWS, May
19, 2022,
https://www.eenews.net/articles/grid
-monitor-warns-of-u-s-blackouts-insobering-report/ ............................................ 14
Peter Manzo et al., Struggling to Move
Up: The Real Cost Measure in
California 2021, United Ways of
California, July 2021,
https://www.unitedwaysca.org/realco
st ..................................................................... 6
Possible Market Implications of
California's Efforts to Ban Internal
Combustion Engines (ICE),
Stillwater Associates, February 9,
2022,
https://stillwaterassociates.com/wpcontent/uploads/2022/06/StillwaterICE-Ban-Analysis-FinalPUBLIC.pdf ......................................... 7, 8, 14
Severin Borenstein et al., Paying for
Electricity in California: How
Residential Rate Design Impacts
Equity and Electrification, NEXT10,
ENERGY INSTITUTE AT HAAS,
September 2022,
https://www.next10.org/sites/default/
files/2022-09/Next10-paying-forelectricity-final-comp.pdf ......................... 9, 10
vii
Sup. Ct. R. 37.6 ................................................... 1
U.S. Convenience Store Count, National
Association of Convenience Stores,
January 19, 2022,
https://www.convenience.org/Resear
ch/FactSheets/IndustryStoreCount............. 15
U.S. Department of Energy, Office of
Energy Efficiency and Renewable
Energy, Fuel Economy Landing
Page for 2021 Toyota Corolla,
https://www.fueleconomy.gov/feg/by
model/2021_Toyota_Corolla.shtml. ............. 12
U.S. Energy Information
Administration, Electric Power
Monthly, February 2022,
https://www.eia.gov/electricity/mont
hly/epm_table_grapher.php?t=epmt_
5_6_a. ............................................................. 9
U.S. EPA, Environmental Justice,
https://www.epa.gov/environmentalj
ustice (last visited August 5, 2024) ............... 5
1
STATEMENT OF INTEREST OF THE AMICUS
CURIAE
Amicus
curiae,
The Two Hundred for
is
a
California-based
unincorporated association of community leaders,
opinion makers, and advocates working in California
and elsewhere on behalf of low-income minorities who
are affected by California’s housing crisis and
increasing wealth gap.
The Two Hundred is
committed to increasing the supply of housing to
levels that support its affordability to California’s
hardworking families, and to restoring and enhancing
home ownership by minorities so that minority
communities can also benefit from the family
stability, enhanced educational attainment over
multiple generations, and improved family and
individual health outcomes that white homeowners
have long taken for granted. The Two Hundred
includes civil rights advocates who each have four or
more decades of experience in protecting the civil
rights of our communities against unlawful conduct
by government agencies and businesses.
Homeownership1,
For many decades, the Two Hundred have
watched with dismay decisions by government
bureaucrats
that
discriminate
against
and
disproportionately harm minority communities. The
to Sup. Ct. R. 37.6, Amicus curiae states that no
counsel for a party authored this brief in whole or in part and no
party or counsel for a party has made a monetary contribution
intended to fund the preparation or submission of this brief.
Otherwise, no person or entity other than Amicus curiae or their
counsel has made a monetary contribution intended to fund the
preparation or submission of this brief.
1 Pursuant
2
Two Hundred have battled this discrimination for
entire careers. In litigation and political action, The
Two Hundred have worked to force government
bureaucrats to reform policies and programs that
included blatant racial discrimination – by, for
example, denying minority veterans college and home
loans and benefits that were available to white
veterans, and promoting housing segregation as well
as preferentially demolishing homes in minority
communities. The Two Hundred have also learned
the hard way that California’s purportedly liberal,
progressive
environmental
regulators
and
environmental advocacy group lobbyists are as
oblivious to the needs of minority communities, and
are as supportive of ongoing racial discrimination in
their policies and practices, as many of their banking,
utility and insurance bureaucratic peers.
Most relevant to the present matter, The Two
Hundred have in recent years been forced to confront
the reality that California’s state-wide air pollution
regulator, the Air Resources Board is pursuing
approaches that discriminate against California’s
low-income and minority communities—purportedly
in service of addressing climate change. In its 2022
Scoping Plan for Achieving Carbon Neutrality (2022
Scoping Plan) published in December 2022, the Air
Resources Board finally admitted that its climate
policies, including those mandating increasing
market share for zero emission vehicles, will decrease
the income of those earning less than $100,000 a year,
3
which is disproportionately made up of ethnic
minorities.2
The Two Hundred support the quality of the
California environment and the need to protect and
improve public health in our communities. The Two
Hundred do not and never have dismissed the
importance of climate change. The Two Hundred are
not opposed to Zero-Emission Vehicles. The Two
Hundred take the position that waivers should be
granted to California under Clean Air Act § 209(b), 42
U.S.C. § 7543(b) in appropriate circumstances. For
example, a waiver should allow the Air Resources
Board to adopt more stringent criteria pollutant
standards to address “compelling and extraordinary
conditions” such as severe smog. The Two Hundred
also agree that other states should be able to
implement those standards when EPA grants
waivers, under Clean Air Act § 177, 42 U.S.C. § 7507.
Indeed, The Two Hundred are keenly aware that
waivers granted to California in the past have
resulted in extraordinary progress against pollution
problems in California that once seemed intractable.
SUMMARY OF ARGUMENT
California’s original Advanced Clean Cars
regulation has a twisted and winding history. In
2008, during the George W. Bush administration, the
United States Environmental Protection Agency
(“EPA”) denied a waiver requested by California
2 California
Air Resources Board’s 2022 Scoping Plan For
Achieving Carbon Neutrality, November 16, 2022, at 125-126,
https://ww2.arb.ca.gov/sites/default/files/2022-12/2022-sp.pdf.
4
under Clean Air Act § 209, 42 U.S.C. § 7543(b) for the
first time.
The Obama administration EPA
subsequently reversed that decision. The Obama
administration then negotiated with California and
developed a set of unified greenhouse gas and tailpipe
standards for other pollutants applicable to both
California and the federal motor vehicle emission
control program. California retained authority to
develop more stringent emission standards, but not to
mandate a single, one-size-fits-all, vehicular engine
technology. In 2013, EPA granted a waiver for the
greenhouse gas standards and zero-emission vehicle
mandates that are part of the Advanced Clean Cars
regulation that had been adopted by California’s
state-wide air regulator, the California Air Resources
Board. In 2019, the Trump EPA withdrew the 2013
waiver as part of its promulgation of a joint EPA and
National Highway Traffic Safety Administration
rulemaking. The rule effectuating this withdrawal is
known as Part 1 of the of the Safer Affordable FuelEfficient Vehicles Rule, which established “One
National Program” (covering fuel efficiency and
greenhouse gas standards).3 The One National
Program was intended to eliminate California’s
separate standards and establish one federally
preemptive set of standards for all vehicles sold
nationally.
In 2022, EPA rescinded the 2019
withdrawal of the waiver and withdrew its legal
interpretation from the Part 1 rule that contended
states could not adopt the California greenhouse gas
3 The
Safer Affordable Fuel-Efficient Vehicles Rule Part One:
One National Program, 83 Fed. Reg. 42986 (September 27,
2019)(codified at 40 C.F.R. pts. 85 and 86 and at 49 C.F.R. pts.
531 and 533).
5
standards under Clean Air Act § 177 even when
California had a valid waiver. The direct appeal of
EPA’s waiver decision that was the subject of the case
below followed.
Until the past decade, California regulatory
efforts like those described above blazed a trail
followed by California as well as the many states that
have followed its lead under Clean Air Act § 177 that
incrementally, but very successfully, addressed air
pollution emissions without unduly burdening vehicle
manufacturers, and more importantly for present
purposes, consumers. Unfortunately, recent efforts
by the Air Resources Board, including the underlying
California rule-making at issue here, have strayed far
from that path. As discussed below, California’s
adoption of the Advanced Clean Cars regulation failed
to address its discriminatory effects and was thus
arbitrary and capricious. EPA’s grant of a Clean Air
Act § 209 waiver for the Advanced Clean Cars
regulation perpetuates that discrimination. In fact,
EPA’s most recent waiver decision, like the related
decisions that came before it, fundamentally ignores
the very principles and policies of environmental
justice that EPA consistently purports to set forth.
Despite EPA’s efforts to establish and implement
environmental justice policies that support, in the
words of EPA, “fair treatment and meaningful
involvement of all people regardless of race, color,
national origin, or income,”4 these efforts have been
woefully insufficient to address the scale and severity
EPA,
Environmental
Justice,
https://www.epa.gov/environmentaljustice (last visited August
5, 2024).
4 U.S.
6
of disproportionate environmental impact in the
United States. This waiver decision is yet another
example of EPA’s blatant disregard for fair treatment
and equity in the implementation of its
environmental policies. Unfortunately, if affirmed,
the judgment below will allow courts to continue to
dodge deciding difficult issues like these by erecting
new and more substantial barriers to challenges
brought by organizations like The Two Hundred.
Thus, the Court should reverse the judgment below.
ARGUMENT
I.
THE ADVANCED CLEAN CARS REGULATION
IMPOSES DISPARATE CONSEQUENCES ON
LOW-INCOME
COMMUNITIES
AND
COMMUNITIES OF COLOR.
As documented by United Ways of California, the
Public Policy Institute of California, and several other
impartial research institutions, California has an
acute
poverty
and
housing
crisis
which
disproportionately impacts our communities of color.5
Of course, obtaining housing requires income.
Obtaining income requires a job. Keeping a job
requires showing up regularly and on time. Lowincome workers need and use cars to get to work, even
in transit-served areas like Los Angeles, where 33
times more jobs can be accessed by car in 30 minutes
See e.g., Peter Manzo et al., Struggling to Move Up: The Real
Cost Measure in California 2021, United Ways of California,
5
July 2021, https://www.unitedwaysca.org/realcost.
7
than can be accessed by a 30 minute transit ride.6 In
the vast majority of California communities, cars are
the only practical transportation option to get to work
on time. Anything that affects the availability of
affordable and reliable (or at least repairable) cars
causes a detrimental impact on the ability of lowincome and minority community members to obtain
and maintain jobs.
The Advanced Clean Cars
regulation represents an attack on exactly those
lower cost (and low emission) personal vehicles.
Many low-income families cannot afford electric
vehicles. As a memo from Capitol Matrix Consulting
notes, the incremental cost for a zero emission vehicle
compared to a vehicle with an internal combustion
engine is well over $10,000 for smaller vehicles and
well over $20,000 for high end sedans, sport utility
vehicles, and pickup trucks.7 Stillwater Associates
similarly observed that low-income families purchase
far fewer new cars, because it is less expensive to
repair used cars when needed.8 They also concluded
Manville et al., Vehicle access and falling transit
ridership: evidence from Southern California. TRANSPORTATION,
6 Michael
February 3, 2022, at Table 2.
7 “Today, the incremental cost for a ZEV compared to an ICE
vehicle with similar features, capabilities, and range is well over
$10,000 for small vehicles, and well over $20,000 for high-end
sedans, SUVs, and pickup trucks.” Impact of the Advanced Clean
Cars II (Internal Combustion Engine Ban) Regulation on
California Businesses, Capitol Matrix Consulting, May 17, 2022,
at 3, https://www.arb.ca.gov/lists/com-attach/477-accii2022AHcAdQBxBDZSeVc2.pdf (Exhibit E of Comments on Advanced
Clean Cars II Regulation Initial Statement of Reasons (ISOR)
Documents by Western States Petroleum).
8 Possible Market Implications of California’s Efforts to Ban
Internal Combustion Engines (ICE), Stillwater Associates,
February 9, 2022, at 31, https://stillwaterassociates.com/wp-
8
that as new cars become more expensive, low-income
families will be priced out of the market.9
Despite these facts, the Advanced Clean Cars
regulation mandates sales of increasing percentages
of costly electric (mostly) and other “zero” emission
vehicles, which for most affected low-income and
minority community members would be impractical
even if they were affordable.10 There are several
reasons for this:
First, residential electricity prices in California
are already almost double the national average and
projected to rise.11 Low-income and disadvantaged
content/uploads/2022/06/Stillwater-ICE-Ban-Analysis-FinalPUBLIC.pdf.
9
Id.
10 The
Advanced Clean Cars regulation mandates that a
minimum of 35% of vehicles sold in California must be “zero”
emission by model year 2026. Were that the end of the story, the
situation might not be catastrophic. Unfortunately, we now
know it was only the opening salvo in the Air Resources Board’s
war on vehicles with internal combustion engines. Subsequent
to the adoption of the Advanced Clean Cars regulation,
California Governor Gavin Newsom signed Executive Order N79-20 mandating a complete ban on vehicles with internal
combustion engines by 2035. Executive Order N-79-20,
September 23, 2020. This is despite the fact that the legislature
had already rejected such a ban that would have started in 2040.
See Assembly Bill 1745: Clean Cars 2040 Act (2017-2018). The
Air Resources Board dutifully followed the Governor’s lead and
included a complete ban on vehicles with internal combustion
engines in its Advanced Clean Cars II regulation and climate
change Scoping Plan. See State of California Air Resources
Board Advanced Clean Cars II Regulations, Resolution 22-12,
August 25, 2022.
11 In February 2022, the average residential electricity rate in
California was $0.2559 per kilowatt-hour, versus a national
9
communities already spend a disproportionate
amount of their income on essential utilities,
including electricity. In its 2019 Annual Affordability
Report, the California Public Utilities Commission,
the state’s utility regulator, reported that “13 percent
of households in the state are located where lowincome households pay more than 15 percent of their
disposable income on electricity service.”12 In
addition, several areas in the state, including Los
Angeles, Chico, parts of the San Joaquin Valley, and
parts of the San Francisco Bay Area, spend
significantly higher amounts “indicating that lowincome households in these areas spend a very large
percentage of their non-disposable income on
electricity.”13 Indeed, a recent analysis conducted and
published by economists at the UC Berkeley Energy
Institute at the Haas School of Business concluded
that California’s electric rate structure that adds
variable costs to electricity rates for things like
compensating victims of wildfires and alleviating the
burdens of high electricity prices on low-income
residents results in adding a “tax” of about $600 to the
annual cost of operating an electric vehicle.14 Of
average of $0.1383. U.S. Energy Information Administration,
Electric
Power
Monthly,
February
2022,
https://www.eia.gov/electricity/monthly/epm_table_grapher.php
?t=epmt_5_6_a.
12 California
Public Utilities Commission, 2019 Annual
Affordability Report, April 2021, at 11, https://www.cpuc.ca.gov//media/cpuc-website/industries-and-topics/reports/2019-annualaffordability-report.
13
Id.
Paying for Electricity in California:
How Residential Rate Design Impacts Equity and
Electrification, NEXT10, ENERGY INSTITUTE AT HAAS, September
14 Severin Borenstein et al.,
10
course, this “tax” falls most heavily on California’s
lowest-income households.15
Increasing electrification of the transportation
sector will require significant infrastructure to
support increased electricity demands and deploy
charging facilities. The California Public Utilities
Commission estimates that meeting additional
demand alone will require an investment of $49
billion in resources, which will be recovered through
further increases in the already high utility rates.16
As a result, the cost of electricity alone could make
electric vehicles impractical for low-income and
minority community members, even with rebates for
purchase of the vehicles and expanded charging
infrastructure.
Second, the Advanced Clean Cars regulation does
not take account of, or provide mitigations for, the
significantly limited access to charging stations for
low-income community members, many of whom will
need access to public charging stations because they
may not have the space or permission from a landlord
necessary to install an electric vehicle charger in their
home or apartment. Without access to an adequate
2022,
https://www.next10.org/sites/default/files/202209/Next10-paying-for-electricity-final-comp.pdf.
15 Id. at p. 5, Figure ES 1 (showing that the lowest income
families must pay the highest percentage of their annual income
for electricity, compared to higher income families).
16 California Public Utilities Commission, Order Instituting
Rulemaking to Continue Electric Integrated Resource Planning
and Related Procurement Processes, Decision Adopting 2021
Preferred System Plan, Decision No. 22-02-004, Feb. 10, 2022,
https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M451/K
412/451412947.PDF.
11
supply of public charging stations, no amount of
rebates to assist with purchases of electric vehicles
will be sufficient.
As more electric vehicles are deployed, building
sufficient chargers to support them will require
substantial additional investments. The California
Energy Commission has reported that charging
infrastructure buildout to support the Advanced
Clean Cars regulation zero emission vehicle mandate
has already fallen well behind the pace needed to
meet the 2025 target of 240,000 chargers.17
Beyond the issue of general charger availability,
studies have shown that disadvantaged and lowincome communities do not enjoy the same access to
electric vehicle charging infrastructure, exacerbating
economic and practical burdens for these vulnerable
groups. The California Energy Commission’s 2020
Senate Bill 1000 Report on Equitable Distribution of
Charging Infrastructure found that public vehicle
chargers are unevenly distributed across the state’s
air quality control districts, noting that relatively
more chargers appear in census tracts with low
population density, and that low-income communities
2021–2023 Investment Plan
Update for the Clean Transportation Program , December 17,
17 California Energy Commission,
2021, https://www.energy.ca.gov/publications/2021/2021-2023investment-plan-update-clean-transportationprogram#:~:text=This%202021%E2%80%932023%20investmen
t%20plan%20establishes%20funding%20allocatio%20ns%20bas
ed%20on,by%20the%20COVID%2D19%20pandemic.
12
on average have the fewest public Level 2 chargers
and other chargers per capita.18
Many individuals, and in particular low-income
populations, who are unable to charge vehicles at
their homes – for example, those residing in
apartment complexes, multi-family homes, or homes
that otherwise only have street parking – will have to
rely on publicly available Level 2 and DC fast
chargers. It is the members of these communities
that will have to travel disproportionately long
distances to use such chargers.
Of the 80,000 public and shared private electric
vehicle chargers in California, 90 percent are Level 2
chargers.19 In order to travel 120 miles, a driver of a
2021 Nissan Leaf would need to charge for over 6
hours at a Level 2 public charging station. This could
cost between $15.78 and $29.54 ($0.13 and $0.25/mi,
respectively), depending on time of use and location
within the state. By comparison, at a gasoline price
of $6 per gallon, the same driver would spend fewer
than 5 minutes and $0.18/mi to fuel a 2021 Toyota
Corolla.20 The popular sentiment, that electric
Energy Commission, California Electric Vehicle
Infrastructure Deployment Assessment: Senate Bill 1000 Report
Increasing Access to Electric Vehicle Infrastructure for All,
18 California
December 2020.
19 California Energy Commission,
California
Dashboard,
Electric Vehicle Chargers in
https://www.energy.ca.gov/datareports/energy-almanac/zero-emission-vehicle-andinfrastructure-statistics/electric-vehicle.
20 The 2021 Toyota Corolla has a combined fuel economy of 33
miles per gallon. U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Fuel Economy Landing Page
for
2021
Toyota
Corolla,
13
vehicles are less expensive to own and drive, clearly
is not true for drivers that lack access to home
chargers. Even were public chargers readily available
in disadvantaged communities, the time and cost
burdens of using them render electric vehicles an
impractical alternative for community members that
must rely on Level 2 chargers.
Additionally, DC Fast Charging Stations do not
present a better solution for low-income and
disadvantaged communities.
Members of these
communities have some of the longest drive times
from community centers to the nearest publiclyaccessible DC Fast Charging Station.21 These
chargers also tend to be more expensive to use and
degrade batteries at an increased rate.
Third, California, at least, continues to confront
electrical grid reliability issues. The state has faced
and will continue to face outages caused by extreme
heat, wildfires, and drought. With increasing reliance
on renewable generation, especially wind and solar,
California also faces reliability issues due to power
inverters that serve solar and wind farms not being
able to “ride-through” short term disturbances such
as those that occurred on four separate occasions in
https://www.fueleconomy.gov/feg/bymodel/2021_Toyota_Corolla
.shtml.
21 California Energy Commission, 2021–2023 Investment Plan
Update for the Clean Transportation Program, December 17,
2021, 42-44, https://www.energy.ca.gov/publications/2021/20212023-investment-plan-update-clean-transportationprogram#:~:text=This%202021%E2%80%932023%20investmen
t%20plan%20establishes%20funding%20allocatio%20ns%20bas
ed%20on,by%20the%20COVID%2D19%20pandemic.
14
For community members with electric
2021.22
vehicles that lack back-up power, a loss of electricity
means a loss of personal mobility and an inability to
get to and from work or school, secure food or obtain
medical attention.
Fourth, as deployment of electric vehicles
increases, demand for vehicle fuels sold at gas
stations will significantly decrease, likely causing
many to close. This will result in fewer fueling
stations for owners of vehicles with internal
combustion engines, who are more likely to be lowincome,23 and will cause such vehicle owners to drive
further in search of fuel. Boston Consulting Group
has estimated that a rapid market uptake of electric
vehicles could cause up to 80 percent of the retail fuel
See Peter Behr and Jason Plautz, Grid monitor warns of U.S.
blackouts in ‘sobering report,’ E&E NEWS, May 19, 2022, https://
22
www.eenews.net/articles/grid-monitor-warns-of-u-s-blackoutsin-sobering-report/ and 2022 Summer Reliability Assessment,
North American Electric Reliability Corporation, May 2022,
https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments
%20DL/NERC_SRA_2022.pdf.
Possible Market Implications of California’s Efforts to Ban
Internal Combustion Engines (ICE), Stillwater Associates,
23
February 9, 2022, at 31, https://stillwaterassociates.com/wpcontent/uploads/2022/06/Stillwater-ICE-Ban-Analysis-FinalPUBLIC.pdf; see also Impact of the Advanced Clean Cars II
(Internal Combustion Engine Ban) Regulation on California
Businesses, Capitol Matrix Consulting, May 17, 2022, at 3,
https://www.arb.ca.gov/lists/com-attach/477-accii2022AHcAdQBxBDZSeVc2.pdf (Exhibit E of Comments on Advanced
Clean Cars II Regulation Initial Statement of Reasons (ISOR)
Documents by Western States Petroleum).
15
market to become unprofitable by 2035.24 If these
trends continued, many of the 100,000 gas stations
throughout the nation would be at risk of going out of
business.25 Low-income rural areas, which already
have fewer gas stations and longer drives to reach
them than urban areas, will likely be most negatively
impacted.
Fifth, declining fuel sales will result in the loss of
high-wage industry jobs in the fuels sector. A 2019
report found that the oil and gas sector supports
nearly 366,000 jobs and paid workers nearly $26
billion in wages in California alone.26 Additionally, in
rural areas the oil and gas industry can contribute
substantially to the local economy. For example, in
California’s Modoc County, the oil and gas industry
contributed $2.5 million to the local economy in
2017.27 Although California officials have committed
to address these employment and economic impacts,
it does not appear any progress has yet been made.
The Advanced Clean Cars regulation does not
consider, much less address these clearly disparate
Is There A Future For Service Stations?,
Boston
Consulting
Group,
July
12,
2019,
https://www.bcg.com/publications/2019/service-stations-future.
25 See U.S. Convenience Store Count, National Association of
Convenience
Stores,
January
19,
2022,
https://www.convenience.org/Research/FactSheets/IndustryStor
eCount.
24 Mirko Rubeis et al.,
Oils and Gas in California: The Industry, Its Economic
Contribution and User Industries at Risk in 2017, Los Angeles
26
County Economic Development Corporation, July 2019, at 84,
https://laedc.org/2019/08/27/oil-and-gas-industry-in-california2019-report/.
27 Id. at 50.
16
and discriminatory impacts on low-income and
minority community members. Rather than promote
more affordable vehicle alternative technologies, such
as hybrids that offer substantial opportunities for
more cost-effective greenhouse gas emission
reductions that work in the current vehicle fleet, the
Advanced Clean Cars regulation mandates only
electric vehicles with the result that at least millions
of dollars of legacy technology and infrastructure will
go to waste. The Advanced Clean Cars regulatory
process entirely failed to account for substantial
economic impacts to individuals in general and to
vulnerable communities in particular that will result
from accelerated vehicle fleet electrification. This
failure renders the original adoption of the rule and
EPA’s approval of a waiver permitting its
implementation arbitrary and capricious.
II. THE JUDGMENT BELOW ERECTS
NEW AND UNWARRANTED BARRIERS TO
CHALLENGES TO REGULATORY ACTIONS
As set forth in the seminal case of Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992), a plaintiff
in federal court must demonstrate Article III standing
by showing that they have suffered a concrete injury,
the injury is fairly traceable to the challenged action,
and that the “injury will be redressed by a favorable
decision.” Id. at 561. These requirements seek to
ensure that federal courts do not exceed their Article
III power to decide actual “cases” or “controversies.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
102 (1998) (“Article III, § 2, of the Constitution
extends the ‘judicial Power’ of the United States only
to ‘Cases’ and ‘Controversies.’ We have always taken
17
this to mean cases and controversies of the sort
traditionally amenable to and resolved by the judicial
process.”).
Where a plaintiff is directly subject to a
challenged regulation, “there is ordinarily little
question that the action or inaction has caused him
injury, and that a judgment preventing or requiring
the action will redress it.” Lujan, 504 U.S. (1992) at
561-562. On the other hand, where a plaintiff is not
directly subject to the challenged regulation,
“standing is not precluded, but it is ordinarily
‘substantially more difficult’ to establish.” Lujan, 504
U.S. (1992) at 562 (citation omitted). Like most public
interest plaintiffs, The Two Hundred have not been
directly subject to the regulations they challenge. In
the instant case, although The Two Hundred and the
people on behalf of whom The Two Hundred litigates
are not directly subject to the Advanced Clean Cars
regulation, as described above, they are certainly
affected by it.
“While 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.’” Parents Protecting Our Children v. Eau
Claire Area School District, 605 U.S. __, __ (2024)
(Alito, J., dissenting from denial of certiorari) (slip op.
2). The judgment below appears to ignore this
obligation. Instead, the court below chose to create
additional obstacles to exercise of its jurisdiction. By
creating such obstacles, the courts avoid reaching
difficult questions like the disparate and
18
discriminatory impacts of EPA’s waiver grants on low
income and minority communities described above.
Access to the federal courts is critical for
vindication of the rights of the people for whom The
Two Hundred advocates. Judicial review is often the
only way for members of disadvantaged low income
and minority communities to attempt to address
harm from government overreach. Members of these
communities are often unable to effectively
participate in administrative and legislative
processes to obtain relief. Imposing new barriers to
judicial review has an especially high cost for these
low income and minority plaintiffs who already face
obvious hurdles to securing justice.
The judgment below indicates that the court
believed that redressability could only be established
if affidavits from directly regulated vehicle
manufacturers could be provided discussing how they
would respond to a vacated waiver and establishing
that they would certainly manufacture more
conventional vehicles and fewer zero emission
vehicles. No decision of this Court has created such
an evidentiary requirement for establishing
redressability. Moreover, it is difficult to imagine
evidence of this nature being available in most cases.
The interests of directly regulated entities are often
quite different from the interests of indirectly affected
parties. In the case of the Advanced Clean Cars
regulation at issue here, for example, because of the
uncertainty they faced with the treatment of the
waiver
across
changes
in
Presidential
administrations, several vehicle manufacturers
entered into agreements with EPA and the California
19
Air Resources Board to provide some measure of
regulatory certainty. Those agreements committed
the manufacturers to produce the vehicles required by
the Advanced Clean Cars regulation even if the
waiver were revoked or invalidated.
Those
manufacturers can hardly have been expected to
provide affidavits indicating they would behave
differently. Even in the absence of the unique
circumstances of the Advanced Clean Cars
regulation, regulated entities are often reluctant to
confront their regulators directly or to oppose them in
litigation.
The judgment below requiring evidence to
establish
redressability
effectively
forecloses
examination of the disparate and discriminatory
impacts of EPA’s waiver decision. By adopting an
inappropriately narrow interpretation of the Article
III standing element of redressability, the court below
has created a nearly insurmountable obstacle in the
path of litigants from low income and minority
communities indirectly but significantly affected by,
and often least able to influence, the bureaucrats who
create and perpetuate these discriminatory
regulations.
20
CONCLUSION
For the foregoing reasons, Amicus curiae
urge this Court to reverse the judgment below.
Respectfully submitted,
Rafe Petersen
Counsel of Record
Jennifer L. Hernandez
Brian C. Bunger
Holland & Knight LLP
800 17th Street, N.W., Suite 1100
Washington, D.C. 20006
202-419-2481
Rafe.Petersen@hklaw.com
Jennifer.Hernandez@hklaw.com
Brian.Bunger@hklaw.com
Counsel for Amicus Curiae
The Two Hundred for Homeownership
February 3, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.