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

No. 24-7

In the Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE STATE RESPONDENTS

ROB BONTA

Attorney General of California

TRACY WINSOR

Senior Assistant

Attorney General

THEODORE MCCOMBS

CAITLAN MCLOON

ELAINE MECKENSTOCK

JONATHAN WIENER

Deputy Attorneys General

MICHAEL J. MONGAN

Solicitor General

JOSHUA A. KLEIN*

TERESA A. REED DIPPO

Deputy Solicitors General

HALEY L. AMSTER

Associate Deputy

Solicitor General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1515 Clay Street, 20th Floor

Oakland, CA 94612

(510) 879-0756

joshua.klein@doj.ca.gov

*Counsel of Record

(Additional counsel listed on signature page)

March 12, 2025

i

QUESTION PRESENTED

Whether petitioners carried their burden to establish the redressability component of Article III standing.

ii

TABLE OF CONTENTS

Page

Introduction ................................................................. 1

Statement .................................................................... 3

A. Legal and regulatory background .................. 3

B. Procedural background................................... 8

Summary of argument .............................................. 12

Argument ................................................................... 14

I. Petitioners failed to establish

redressability ....................................................... 14

A. It was petitioners’ burden to introduce

evidence establishing each element of

Article III standing ....................................... 14

B. The circumstances of this case raised a

serious question as to whether

petitioners’ claim was redressable ............... 17

C. Petitioners did not introduce evidence

establishing redressability ........................... 23

II. Petitioners identify no valid basis for

reversal ................................................................ 27

A. Government regulations implicating

the use of a product do not

categorically establish standing for

producers to sue ............................................ 28

1. Petitioners’ proposed rule is at

odds with the precedent they

invoke...................................................... 28

2. Petitioners’ rule would violate

basic principles of Article III

standing .................................................. 32

3. Petitioners’ policy arguments do

not justify their rule ............................... 35

iii

TABLE OF CONTENTS

(continued)

Page

B. Unsupported predictions about the

effect of a judgment on a third party

are insufficient to establish

redressability ................................................ 38

C. The duration of the waiver does not, by

itself, establish standing .............................. 42

D. Petitioners’ post hoc attempts to

identify evidence on redressability fail

to establish standing .................................... 45

Conclusion .................................................................. 49

iv

TABLE OF AUTHORITIES

Page

CASES

Already, LLC v. Nike, Inc.

568 U.S. 85 (2013) ................................................ 45

Bennett v. Plenert

1993 WL 669429

(D. Or. Nov. 18, 1993) .......................................... 30

Bennett v. Spear

520 U.S. 154 (1997) ...................... 28, 29, 30, 31, 33

California v. Texas

593 U.S. 659 (2021) ............................ 34, 39, 40, 41

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

642 F.3d 192 (D.C. Cir. 2011) .............................. 18

Clapper v. Amnesty Int’l USA

568 U.S. 398 (2013) ........................................ 26, 32

CBS, Inc. v. United States

316 U.S. 407 (1942) ........................................ 30, 31

Competitive Enter. Inst. v. FCC

970 F.3d 372 (D.C. Cir. 2020) .............................. 36

Competitive Enter. Inst. v. NHTSA

901 F.2d 107 (D.C. Cir. 1990) .............................. 36

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

Fed. Rsrv. Sys.

603 U.S. 799 (2024) ............................................. 36

v

TABLE OF AUTHORITIES

(continued)

Page

Dep’t of Com. v. New York

588 U.S. 752 (2019) ........................ 3, 13, 22, 38, 39

Duke Pwr. Co. v. Carolina Envt’l Study

Group, Inc.

438 U.S. 59 (1978) ................................................ 36

Energy Future Coalition v. EPA

793 F.3d 141 (D.C. Cir. 2015) ................. 31, 32, 33

Engine Mfrs. Ass’n v. EPA

88 F.3d 1075 (D.C. Cir. 1996) ................................ 4

FDA v. All. for Hippocratic Med.

602 U.S. 367 (2024) ....................... 1, 15, 16, 23, 27,

32, 38, 40, 41

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.

528 U.S. 167 (2000) ............................................. 24

FW/PBS, Inc. v. City of Dallas

493 U.S. 215 (1990) .............................................. 40

Gratz v. Bollinger

539 U.S. 244 (2003) .............................................. 30

Haaland v. Brackeen

599 U.S. 255 (2023) ........................................ 26, 41

Hertz Corp. v. Friend

559 U.S. 77 (2010) .................................... 17, 26, 32

vi

TABLE OF AUTHORITIES

(continued)

Page

Kokkonen v. Guardian Life Ins. Co.

of Am.

511 U.S. 375 (1994) .................................. 14, 22, 33

Lujan v. Defs. of Wildlife

504 U.S. 555 (1992) ......... 14, 15, 16, 18, 26, 28, 29,

31, 32, 33, 35, 41, 42

Lujan v. Nat’l Wildlife Fed’n

497 U.S. 871 (1990) .............................................. 25

Maine v. Taylor

477 U.S. 131 (1986) .............................................. 38

Maryland v. King

567 U.S. 1301 (2012) ...................................... 38, 46

Massachusetts v. EPA

549 U.S. 497 (2007) ........................................ 39, 40

McNutt v. Gen. Motors Acceptance

Corp. of Ind.

298 U.S. 178 (1936) .............................................. 14

Motor & Equip. Mfrs. Ass’n, Inc. v. EPA

627 F.2d 1095 (D.C. Cir. 1979) .............................. 4

Murthy v. Missouri

603 U.S. 43 (2024) .......................... 1, 15, 26, 41, 47

Nat’l Council for Adoption v. Blinken

4 F.4th 106 (D.C. Cir. 2021) ................................. 26

vii

TABLE OF AUTHORITIES

(continued)

Page

Ne. Fla. Chapter of Associated Gen.

Contractors v. City of Jacksonville

508 U.S. 656 (1993) ........................................ 30, 31

New York v. Dep’t of Com.

351 F. Supp. 3d 502 (S.D.N.Y. 2019) ................... 39

Pierce v. Soc’y of the Sisters of the Holy

Names of Jesus & Mary

268 U.S. 510 (1925) .............................................. 30

Renne v. Geary

501 U.S. 312 (1991) .............................................. 33

Sierra Club v. EPA

292 F.3d 895 (D.C. Cir. 2002) .......................... 9, 15

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

426 U.S. 26 (1976) .......................................... 22, 26

Skyline Wesleyan Church v. Cal. Dep’t of

Managed Health Care

968 F.3d 738 (9th Cir. 2020) ................................ 40

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

523 U.S. 83 (1998) ................................................ 32

Summers v. Earth Island Inst.

555 U.S. 488 (2009) .................................. 14, 41, 42

Susan B. Anthony List v. Driehaus

573 U.S. 149 (2014) .............................................. 16

viii

TABLE OF AUTHORITIES

(continued)

Page

United States v. Texas

599 U.S. 670 (2023) ........................................ 15, 41

Warth v. Seldin

422 U.S. 490 (1975) ............................ 16, 17, 26, 42

West Virginia v. EPA

597 U.S. 697 (2022) .............................................. 16

Wittman v. Personhuballah

578 U.S. 539 (2016) .............................................. 17

STATUTES

42 U.S.C.

§ 7407 .................................................................... 46

§ 7507 ...................................................................... 4

§ 7521 ...................................................................... 4

§ 7543(a) ................................................................. 4

§ 7543(b)(1) ............................................................. 4

§ 7607(b)(1) ............................................................. 7

STATE REGULATIONS

Cal. Code Regs. tit. 13

§ 1961.3(a)(1)(A) ................................................... 44

§ 1961.3(a)(1)(A) (2012) .......................................... 6

§ 1962.2(b) (2012) ................................................... 5

§ 1962.2(b)(1) (2012) ............................................. 22

§ 1962.2(b)(1)(A) (2012) ........................ 6, 19, 22, 44

§ 1962.2(b)(1)(A) (2022) .......................................... 6

§ 1962.2(d)(5) .......................................................... 6

§ 1962.4(a) (2022) ................................................... 6

ix

TABLE OF AUTHORITIES

(continued)

Page

COURT RULES

D.C. Cir. R. 28(a)(7) ......................................... 8, 15, 47

OTHER AUTHORITIES

58 Fed. Reg. 4166 (Jan. 13, 1993) ............................... 5

74 Fed. Reg. 32,744 (July 8, 2009) .............................. 5

78 Fed. Reg. 2112 (Jan. 9, 2013) ................... 5, 6, 7, 19

84 Fed. Reg. 51,310 (Sept. 27, 2019) ..................... 7, 25

86 Fed. Reg. 74,438 (Dec. 30, 2021) .................... 20, 21

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

89 Fed. Reg. 82,553 (Oct. 11, 2024) .................... 46, 47

90 Fed. Reg. 642 (2025) ............................................... 6

Cal. Air Res. Bd., ACC II ZEV

Technology Assessment (Apr. 12,

2022),

https://tinyurl.com/2d2db9vc ................................. 6

Cal. Air Res. Bd., California’s Advanced

Clean Cars Midterm Review, App. B

(Jan. 18, 2017),

https://tinyurl.com/yrzdx3t4 .......................... 18, 19

x

TABLE OF AUTHORITIES

(continued)

Page

Cal. Air Res. Bd., EMFAC 2021 Volume

III Technical Document (Apr. 2021),

https://tinyurl.com/2wsxz4uy ............................... 47

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

Program,

https://tinyurl.com/49m28yze ................................ 5

Cal. Energy Comm’n, New ZEV Sales in

California,

https://tinyurl.com/pt526fp5 ............................ 7, 21

EPA, Vehicle Emissions California

Waivers and Authorizations,

https://tinyurl.com/3rxscztw ................................. 5

Ohio v. EPA, No. 24-13 (Dec. 16, 2024) .................... 12

Pet. Br., Energy Future Coalition

v. EPA, No. 14-1123,

2014 WL 5035232 ................................................ 32

Pet. for Rev., Valero Renewable Fuels

Co., LLC v. EPA, No. 25-1078

(D.C. Cir.) (filed Feb. 28, 2025) .............................. 7

Redish, Moore’s Federal Practice

(3d ed. & Supp. 2025) ........................................... 16

Resp. Br., Bennett v. Spear

No. 95-813 (U.S.), 1996 WL 396714

(July 15, 1996) ................................................ 29, 30

xi

TABLE OF AUTHORITIES

(continued)

Page

Roberts, Article III Limits on Statutory

Standing, 42 Duke L.J. 1219 (1993) .................... 15

1

INTRODUCTION

Parties who seek to invoke the jurisdiction of a federal court bear the burden of showing that they have

Article III standing. As their case progresses, they

must “point to factual evidence” establishing that they

satisfied the three elements of standing—injury, causation, and redressability—as of the time they filed

suit. Murthy v. Missouri, 603 U.S. 43, 57-58 (2024).

The only question here is how to apply those long-settled requirements to the peculiar circumstances of this

case, involving a waiver of preemption under Section

209(b) of the Clean Air Act.

As petitioners describe things, that question is

“straightforward” because standing is automatic here.

Pet. Br. 35. Petitioners profit from sales of fuel. They

note that the waiver allowed California to impose

state standards limiting greenhouse-gas emissions

across automakers’ fleets and requiring automakers to

sell a certain percentage of zero-emission vehicles. Petitioners assert that “[t]hey promptly challenged

EPA’s waiver,” id. at 20; that the waiver injures petitioners and their members by “reduc[ing] the use of

liquid fuel,” id.; and that “[s]etting aside EPA’s waiver

would . . . end[] the artificial depression of demand for

petitioners’ products,” id. at 20-21. Standing was so

“obvious,” in their view, that they did not “need to supply additional record evidence” to establish redressability. Id. at 17, 18.

But “applying the law of standing” frequently demands a “heavily fact-dependent” inquiry, FDA v. All.

for Hippocratic Med., 602 U.S. 367, 384 (2024), and petitioners elide the most salient facts in this case. EPA

granted the relevant waiver in 2013. Petitioners did

not challenge that waiver and neither did anyone else.

It remained in effect for more than six years before

2

EPA withdrew it in 2019. During those six years, in

response to the state standards and wider national

and global trends, automakers invested heavily in

changing their fleets and building consumer demand

for electric vehicles. Consumer preferences and the

automobile market evolved. Even when EPA withdrew the waiver, automakers accelerated their transition to electric vehicles and consumer demand

continued to grow.

In 2021, when EPA invited comment on whether to

reinstate the waiver, the state respondents supported

reinstatement. As their comment explained, the withdrawal had exceeded EPA’s authority and it deprived

California’s regulations of legal effect. But by the time

EPA reinstated the waiver and petitioners challenged

that decision in 2022, “‘both internal sustainability

goals and external market forces’” were pushing

“manufacturers to transition toward electric vehicles,

irrespective of California’s regulations.” Pet. App. 24a

n.8. Indeed, publicly available evidence submitted by

the state respondents showed that zero-emission vehicles sold in California in 2022 already exceeded what

the relevant standards required. Consumers were

willing to pay substantial price premiums for those vehicles. And automakers had strong incentives to keep

selling them.

When the court of appeals confronted petitioners’

challenge to the reinstatement, it had to assure itself

of jurisdiction by evaluating whether vacatur of that

reinstatement would likely lead automakers to make

choices that would redress petitioners’ asserted injury.

Given the circumstances when petitioners filed suit in

May 2022, would automakers change their fleets or

prices in a way that would increase demand for petitioners’ liquid-fuel products? Or would automakers

3

exceed the requirements of California’s standards for

their own economic and strategic reasons, even without a legal requirement to do so? Petitioners submitted no evidence addressing that critical issue. And

given that absence of proof, the court of appeals

properly held that petitioners failed to meet their burden of demonstrating redressability.

Petitioners ask this Court to excuse that failure.

They first urge the Court to adopt a new “categorical

rule.” Pet. Br. 4. Under that rule, redressability

would be established automatically whenever petitioners challenge a regulation that implicates the use

of their products—even if the regulation applies only

to third parties, and even where petitioners introduce

no evidence indicating that those third parties would

have acted differently in the regulation’s absence. Id.

In the alternative, petitioners ask the Court to credit

their unsubstantiated predictions about how automakers might respond to a vacatur. Id. at 30-35.

Those arguments find no support in this Court’s precedent. Adopting them would effectively eliminate the

plaintiff ’s “burden of showing that third parties will

likely react” to a favorable judgment in a way that provides redress. Dep’t of Com. v. New York, 588 U.S. 752,

768 (2019). And they would allow a court to assume

redressability even if all the evidence before it indicates that a favorable judgment would not, in fact, redress the plaintiffs’ injury. This Court should reject

petitioners’ novel standing theories and affirm the

judgment below.

STATEMENT

A. Legal and Regulatory Background

1. The Clean Air Act directs EPA to prescribe federal standards governing emissions of air pollutants

4

from new motor vehicles and new motor vehicle engines. 42 U.S.C. § 7521. Section 209(a) of the Act generally preempts States and their political subdivisions

from “adopt[ing] or attempt[ing] to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines.” Id.

§ 7543(a). But Section 209(b) instructs EPA to “waive

application of [Section 209] to any State which ha[d]

adopted” qualifying emission standards “prior to

March 30, 1966, if the State determines that the State

standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal

standards.” Id. § 7543(b)(1). If a State makes that determination, EPA must waive preemption unless it

makes one of three enumerated findings. See id.

§ 7543(b)(1)(A)-(C).

California is the only State eligible for a waiver under Section 209(b) because it was the only State that

had developed qualifying motor vehicle emissions

standards before March 30, 1966. Pet. App. 7a. “Congress recognized that California was already the

‘lead[er] in the establishment of standards for regulation of automative pollutant emissions’ at a time when

the federal government had yet to promulgate any regulations of its own.” Engine Mfrs. Ass’n v. EPA, 88

F.3d 1075, 1079 (D.C. Cir. 1996). Congress designed

Section 209 to allow California to continue to serve as

a “‘laboratory for innovation,’” id. at 1080, while also

“avoid[ing] the economic disruption” that would come

from manufacturers “having to meet fifty-one separate

sets of emission control requirements,” Motor &

Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095, 1109

(D.C. Cir. 1979); see also 42 U.S.C. § 7507 (1977

amendment allowing other States to adopt standards

“identical to the California standards for which a

waiver has been granted for such model year”); Pet.

5

App. 9a n.3 (noting that “seventeen states have chosen

to adopt some portion of the California regulations”).

California received its first waiver in 1968 and has

received additional waivers in every subsequent decade.1 For instance, EPA granted a waiver in 1993 for

California’s first Zero Emission Vehicle (ZEV) regulation, which required a specific percentage of light-duty

vehicles to be zero-emission vehicles with no exhaust

or evaporative emissions. 58 Fed. Reg. 4166 (Jan. 13,

1993).2 EPA granted another waiver, in 2009, for California’s first set of regulations to control greenhousegas emissions from motor vehicles. 74 Fed. Reg.

32,744 (July 8, 2009).

2. This litigation concerns a set of emissions

standards that California adopted in 2012 as part of

its Advanced Clean Cars I program. 78 Fed. Reg. 2112

(Jan. 9, 2013). As relevant here, those standards included a requirement that automakers reduce the average greenhouse-gas emissions across the fleets of

vehicles they sell in California. See id. at 2114. They

also included new ZEV standards, requiring manufacturers to meet specified “ZEV credit percentage” requirements. Cal. Code Regs. tit. 13, § 1962.2(b)

(2012).

A manufacturer can satisfy the “ZEV credit percentage” in several ways: by generating credits from

sales of qualifying vehicles, purchasing credits from

other manufacturers, using excess credits banked in

prior years, or applying credits obtained by overcom1 See EPA, Vehicle Emissions California Waivers and Authoriza-

tions, https://tinyurl.com/3rxscztw (last visited Mar. 6, 2025).

2 See Cal. Air Res. Bd., Low-Emission Vehicle Program,

https://tinyurl.com/49m28yze (last visited Mar. 6, 2025).

6

plying with the greenhouse-gas emission requirements. See Cal. Code Regs. tit. 13, § 1962.2(d)(5); 78

Fed. Reg. at 2119-2120, 2135. The number of ZEV

credits generated by a vehicle sale depends on the vehicle’s range when operating on electric power. See

Cal. Code Regs. tit. 13, § 1962.2(d)(5). For example, a

plug-in hybrid vehicle with a “50 mile” electric range

earns one credit, while a fully battery-electric vehicle

with a “350 mile” range earns four credits.3 As a result, a fleet may satisfy the standards even though

ZEV sales as a percentage of light-duty vehicles sold

is well below the applicable ZEV credit percentage requirement.

The Advanced Clean Cars I standards affected

model years beginning in 2017 (for greenhouse-gas

emissions) and 2018 (for ZEV requirements). Both

sets of standards were originally structured to increase in stringency through model year 2025 and remain in effect at 2025 levels for subsequent model

years. See Cal. Code Regs. tit. 13, § 1961.3(a)(1)(A)

(2012); id. § 1962.2(b)(1)(A) (2012); J.A. 50. In 2022,

however, California amended the ZEV standards (but

not the greenhouse-gas standards) to expire after

model year 2025. See Cal. Code Regs. tit. 13,

§ 1962.2(b)(1)(A) (2022).4

3 78 Fed. Reg. at 2114-2115; see Cal. Air Res. Bd., ACC II ZEV

Technology Assessment, at 11-12 tbl. 2 (Apr. 12, 2022) (showing

electric ranges of model year 2021 battery and plug-in hybrid vehicles), https://tinyurl.com/2d2db9vc (last visited Mar. 11, 2025).

4 California adopted that amendment because its Advanced

Clean Cars II standards included a new set of ZEV requirements

applicable to model years 2026 and beyond. See Cal. Code Regs.

tit. 13, § 1962.4(a) (2022). EPA granted a waiver for the Advanced Clean Cars II standards on December 17, 2024. 90 Fed.

(continued…)

7

California requested a waiver for the Advanced

Clean Cars I program in 2012. That request described

how the new standards would increase production of

zero-emission vehicles, thus decreasing emissions of

criteria pollutants and greenhouse gases. J.A. 34-35,

40-44. EPA granted the waiver in early 2013. 78 Fed.

Reg. at 2145. As the Federal Register notice of that

action observed, petitions for judicial review were due

by March 11, 2013. Id.; see 42 U.S.C. § 7607(b)(1). Nobody challenged EPA’s decision to grant the waiver.

More than six years later, EPA withdrew the parts

of the waiver at issue in this case. 84 Fed. Reg. 51,310

(Sept. 27, 2019). By that time, automakers had made

“investments to meet” the greenhouse-gas and ZEV

standards and “had adjusted their fleets to comply

with” them. Pet. App. 12a; see id. at 124a. Consumers

had grown increasingly familiar with zero-emission

vehicles. Even after the waiver was withdrawn, consumer demand for those vehicles continued to grow

and automakers continued to announce plans to sell

them in greater numbers. J.A. 191-192, 201-203. By

2020, for example, zero-emission vehicles were around

8% of the new light-duty vehicles registered in California; that figure jumped to over 12% the following

year.5

In 2021, EPA solicited comment on whether it

should reinstate the waiver. The state respondents

submitted a comment in July 2021, explaining that

Reg. 642 (2025). Several challenges to that waiver are now pending, including one that two of the petitioners here filed on February 28, 2025. Pet. for Rev., Valero Renewable Fuels Co., LLC v.

EPA, No. 25-1078 (D.C. Cir.).

5 Cal. Energy Comm’n, New ZEV Sales in California, https://ti-

nyurl.com/pt526fp5 (displaying “ZEV Sales Share” in top-right

corner when 2020 and 2021 filters are selected).

8

the withdrawal was unlawful and poorly reasoned.

C.A. J.A. 188-215; see J.A. 51-68. Auto-industry commenters emphasized the “billions of dollars of investment in electric vehicle manufacturing and

infrastructure” that automakers had already made as

a result of the 2013 decision to grant the waiver. J.A.

103 (National Coalition for Advanced Transportation

comment); cf. J.A. 63 (California comment observing

that “automakers have complied with, and often overcomplied with, model years 2017-2020 already”). EPA

reinstated the waiver in March 2022. 87 Fed. Reg.

14,332 (Mar. 14, 2022).

B. Procedural Background

1. The petitioners here are various companies that

produce or sell liquid fuels, as well as related trade associations. Pet. App. 2a. They filed petitions for review of EPA’s reinstatement decision in the D.C.

Circuit on May 12, 2022. Id. at 15a. The court of appeals consolidated those cases, along with another

case initiated by a group of States led by Ohio. Id.

Shortly thereafter, the state respondents here filed an

unopposed motion for leave to intervene in support of

EPA, as did various automakers and public-interest

organizations. Id. at 15a & nn.4-6; see J.A. 107. Those

motions were granted. See Pet. App. 15a.

Petitioners principally argued that EPA’s reinstatement of the waiver contravened the Clean Air

Act. Pet. App. 16a. Before the court of appeals could

reach the merits of that claim, however, it had to assure itself of jurisdiction. Under longstanding circuit

rules, the opening brief for a petitioner seeking review

of agency action “must set forth the basis for the claim

of standing.” D.C. Cir. R. 28(a)(7). And if “standing is

not apparent from the administrative record, the brief

must include arguments and evidence establishing the

9

claim of standing.” Id.; see also Sierra Club v. EPA,

292 F.3d 895, 901 (D.C. Cir. 2002).

Petitioners’ opening brief below devoted just two

paragraphs to standing. J.A. 118-119. Petitioners explained that “depressing the demand” for liquid fuels

“injures petitioners and petitioners’ members financially.” Id. at 118. They cited documents from California’s 2011 rulemaking in which a California agency

had forecast the prospect of financial injury to oil and

gas industry participants. Id. (citing C.A. J.A. 799,

801, 830, 832). Petitioners asserted that “[t]his economic injury . . . is caused by the challenged regulatory action, and this Court can redress that injury by

setting aside the action.” J.A. 118. They attached 14

declarations, but the only discussion of redressability

in those declarations consisted of unsupported assertions that vacatur would remedy petitioners’ injury.

Id. at 130, 137, 150, 154, 158, 167.

In response, the state respondents argued that petitioners had failed to establish standing, emphasizing

that petitioners provided no evidence that vacatur of

the reinstatement decision in May 2022 would change

automakers’ behavior in a way that would increase

fuel sales. J.A. 185-187. The state respondents also

submitted evidence undermining the likelihood of any

such change: by 2022, sales of zero-emission vehicles

in California exceeded what was required by the relevant standards; consumer demand for those vehicles

was growing, as was consumer willingness to pay price

premiums; and many manufacturers had announced

plans for even greater zero-emission vehicle sales in

the future. Id. at 191-195, 201-203. On reply, petitioners did not submit record evidence countering the

state respondents’ evidence about the circumstances

in 2022. See id. at 209-211.

10

At oral argument, the panel questioned petitioners

about jurisdiction, with a particular focus on the “argument that you haven’t demonstrated redressability.” C.A. Oral Arg. 25:50-26:12. Two weeks later,

petitioners sought leave to file a supplemental brief

and to supplement the record with two new declarations. Pet. App. 30a. The proposed brief and declarations mostly addressed the separate issue of mootness.

See C.A. Private Pet. Proposed Supp. Br. 1-3, 4-13. In

a short section on standing, petitioners characterized

the arguments against redressability as “implausible”

and “incredible,” id. at 3, 4—but again cited no evidence establishing how judicial relief in May 2022

would have redressed their asserted injuries, and did

not attempt to counter the state respondents’ evidence

on that point.

2. The court of appeals concluded that it lacked jurisdiction to decide petitioners’ challenge because petitioners had failed to establish Article III standing.

Pet. App. 16a-19a. Without deciding whether petitioners had established injury or causation, the court explained that petitioners fell “far short of meeting their

burden” to establish a likelihood “that their alleged

injuries would be redressed” if the court agreed with

petitioners’ merits theory and vacated EPA’s reinstatement decision. Id. at 21a.

As the court explained, redressability for petitioners “‘hinge[d] on’ the actions of third parties—the automobile manufacturers who are subject to the

waiver.” Pet. App. 22a. Petitioners needed to show

that automakers would respond to vacatur of the reinstatement “by producing and selling fewer non-conventional vehicles or by altering the prices of their

vehicles such that fewer non-conventional vehicles—

and more conventional vehicles—were sold.” Id. But

11

the record indicated “that ‘manufacturers are already

selling more qualifying vehicles in California than the

State’s standards require,’” id. at 28a, and “that ‘both

internal sustainability goals and external market

forces’ are prompting manufacturers to transition toward electric vehicles, irrespective of California’s regulations,” id. at 24a n.8; see also id. at 28a.

Nevertheless, the court of appeals observed, petitioners “treated redressability as a foregone conclusion” instead of making a factual showing. Pet. App.

25a. They did not “attempt[] to explain in any detail

how their injuries are redressable, let alone to ‘cit[e]

any record evidence’ or to file ‘additional affidavits or

other evidence sufficient to support’ redressability.”

Id. at 24a-25a. Nor did petitioners “meaningfully address[]” redressability on reply, after the state respondents introduced arguments and evidence

contesting redressability. Id. at 28a. “Ultimately, the

record evidence, coupled with the filings of the EPA

and intervenors, provide[d] th[e] Court with no basis

to conclude that Petitioners’ claims are redressable—

a necessary element of standing that Petitioners bear

the burden of establishing.” Id. at 29a.

The court of appeals also described its understanding that the challenge before it “concern[ed] only” the

reinstatement of the waiver “as to Model Years 2017

through 2025.” Pet. App. 22a. But see supra p. 6; infra

p. 44. On that understanding, the court explained, petitioners had to show “not only that automobile manufacturers are likely to respond to a decision by this

Court by changing their fleets in a way that alleviates

[petitioners’] injuries in some way, but also that automobile manufacturers would do so relatively quickly—

by Model Year 2025.” Pet. App. 23a. That timing ele-

12

ment “further complicated” the redressability analysis,” in the court’s view. Id. at 22a. “[E]ven if ” petitioners

had

established

that

“automobile

manufacturers were inclined to change course” in response to a vacatur in a way that would increase fuel

sales, it was “far from clear that they could do so” by

model year 2025. Id. at 24a; see id. at 23a.

Finally, the court of appeals denied petitioners’

post-argument motion for leave to file a supplemental

brief and declarations. Pet. App. 30a-32a. The court

explained that, under the circumstances, petitioners

should have understood their obligation to address redressability in their opening brief. Id. at 31a. Moreover, “[p]etitioners offer[ed] no explanation for having

failed to address redressability in their reply brief after California raised the issue in its opposition brief.”

Id. at 32a.

Petitioners did not seek panel rehearing or rehearing en banc. They instead filed a petition for a writ of

certiorari respecting both the redressability question

and the merits of their statutory claim (which the

court of appeals had not reached). This Court granted

certiorari on the redressability question only.6

SUMMARY OF ARGUMENT

Petitioners sought a judgment vacating EPA’s reinstatement of a nearly decade-old waiver. Under settled precedent, petitioners had the burden of

establishing that automakers would likely respond to

6 This Court also denied a petition for certiorari filed by Ohio and

other petitioners, which advanced a separate constitutional

claim. See Ohio v. EPA, No. 24-13 (Dec. 16, 2024). The court of

appeals had held that the Ohio petitioners established standing

to bring that claim, but it rejected the claim on the merits. See

Pet. App. 32a-49a.

13

that vacatur in ways that would increase demand for

petitioners’ liquid-fuel products. By the time they

filed suit in May 2022, however, the likely effect of a

vacatur was not self-evident: in the nine years since

EPA first granted the waiver, automakers had made

enormous investments in producing and marketing

zero-emission vehicles; consumer demand for those vehicles had recently surged; and evidence before the

Court indicated that automakers would continue to

sell those vehicles in large numbers regardless of the

reinstatement or its potential vacatur. Article III required petitioners to introduce current evidence buttressing their assertion that a vacatur in 2022 would

lead automakers to change their fleets or prices in

ways that would increase liquid-fuel sales. Because

petitioners did not even attempt to do so, the court of

appeals properly held that they failed to establish

standing.

In this Court, petitioners advance several novel

theories for why they had no obligation to introduce

any evidence of redressability. None of those theories

is persuasive. They first propose a categorical rule

that redressability is automatically established whenever a challenged government action implicates the

use of the challenger’s products. Pet. Br. 17-18. Precedent forecloses that proposal: this Court has consistently focused on the particular facts of a case—and

required challengers to submit specific evidence supporting redressability before obtaining a final judgment. For similar reasons, plaintiffs may not rely on

unsupported predictions about the effects of a judgment on a third party’s choices. See id. at 18. They

must instead meet “their burden of showing that third

parties will likely react in predictable ways” by introducing actual evidence. Dep’t of Com. v. New York,

588 U.S. 752, 768 (2019). And the fact that a statute

14

or regulation “does not sunset” (Pet. Br. 19) does not,

by itself, establish standing to challenge it.

Finally, petitioners’ belated attempts to identify

record evidence supporting redressability cannot

change the outcome here. Their briefs and declarations below were conclusory on the subject of redressability. The additional evidence they describe in this

Court not only comes too late, it would have been insufficient even if they had presented it below: it consists of outdated projections that cannot substitute for

evidence about the market as it existed when petitioners filed this challenge in May 2022.

ARGUMENT

I. PETITIONERS FAILED TO ESTABLISH REDRESSABILITY

Petitioners had the burden to establish standing.

As to redressability, they had to show that judicial vacatur of the reinstatement decision at the time they

filed suit in May 2022 would likely lead to increased

fuel sales. They failed to carry that burden.

A. It Was Petitioners’ Burden to Introduce

Evidence Establishing Each Element of

Article III Standing

Before turning to the merits of a suit, a court must

assure itself of jurisdiction. Summers v. Earth Island

Inst., 555 U.S. 488, 499 (2009). The “burden of establishing” jurisdiction lies with “the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994) (citing McNutt v. Gen. Motors

Acceptance Corp. of Ind., 298 U.S. 178, 182-183

(1936)).

Standing is “an essential and unchanging part” of

Article III jurisdiction. Lujan v. Defs. of Wildlife, 504

15

U.S. 555, 560 (1992). The doctrine of standing is built

on “the idea of separation of powers.” United States v.

Texas, 599 U.S. 670, 675 (2023). It “implements ‘the

Framers’ concept of the proper—and properly limited—role of the courts in a democratic society.’” FDA

v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024)

(quoting Roberts, Article III Limits on Statutory

Standing, 42 Duke L.J. 1219, 1220 (1993)).

The “irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560.

First, the party bringing suit “must have suffered an

‘injury in fact.’” Id. Second, that injury must “be

‘fairly traceable to the challenged action of the defendant, and not the result of the independent action of

some third party not before the court.’” Id. (alterations omitted). And third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’” Id. at 561. Each

element is assessed as of the time the suit commenced.

Murthy v. Missouri, 603 U.S. 43, 58 (2024).

A party seeking to invoke the jurisdiction of a federal court “must support each element of standing

‘with the manner and degree of evidence required at

the successive stages of the litigation.’” Murthy, 603

U.S. at 58. At the outset of litigation, “‘mere allegations’” may suffice; as the case progresses, a party

“must . . . point to factual evidence.” Id. A petitioner

who challenges agency action may be able to carry its

burden by identifying evidence in the administrative

record that establishes its standing. See, e.g., Sierra

Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002).

But if “standing is not apparent from the administrative record,” a petitioner’s “brief must include arguments and evidence establishing the claim of

standing.” D.C. Cir. R. 28(a)(7); see Sierra Club, 292

16

F.3d at 900; see generally 15 Redish, Moore’s Federal

Practice §§ 101.31, 101.61[10] (3d ed. & Supp. 2025).

Sometimes standing analysis is straightforward.

For instance, in some cases the party invoking the

court’s jurisdiction is itself “an object of ” the challenged government action. Lujan, 504 U.S. at 561.

The government might, for example, proscribe speech

that the plaintiff engages in. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 161-167 (2014).

Or it might require a state plaintiff to engage in particular regulation. See, e.g., West Virginia v. EPA, 597

U.S. 697, 718-719 (2022). In those scenarios, “there is

ordinarily little question that the action . . . has

caused [the plaintiff] injury, and that a judgment preventing . . . the action will redress” that injury. Lujan,

504 U.S. at 561-562; see All. for Hippocratic Med., 602

U.S. at 382.

In other scenarios, “much more is needed.” Lujan,

504 U.S. at 562. When a party’s “asserted injury

arises from the government’s allegedly unlawful regulation . . . of someone else,” for example, standing can

be “‘substantially more difficult’ to establish.” Id. In

those cases, “causation and redressability ordinarily

hinge on the response of ” that third party—“and perhaps on the response of others as well.” Id. Because

the inquiry turns on “choices made by independent actors not before the courts,” the plaintiff must “adduce

facts showing that those choices have been or will be

made in such manner as to produce causation and permit redressability of injury.” Id. For instance, if plaintiffs are injured by the lack of affordable private

housing, they must show “an actionable causal relationship” between the challenged zoning ordinance

and the choices of private third parties who build and

sell housing. Warth v. Seldin, 422 U.S. 490, 507

17

(1975). Their claim may not proceed if the asserted

injury instead results from “the economics of the area

housing market.” Id. at 506; see generally id. at 508

(requiring the party “who seeks to challenge” a government action to introduce “specific, concrete facts

demonstrating . . . that he personally would benefit in

a tangible way from the court’s intervention”).

Concrete evidence from the plaintiff is especially

critical if another party has introduced evidence undermining the asserted theory of standing. “When

challenged by . . . an opposing party,” for example, a

plaintiff “invoking the court’s jurisdiction cannot

simply allege a nonobvious harm, without more.”

Wittman v. Personhuballah, 578 U.S. 539, 545 (2016).

And if “there is no ‘more,’” then there is no jurisdiction. Id.; see generally Hertz Corp. v. Friend, 559 U.S.

77, 96-97 (2010) (when defendants raise facts calling

jurisdiction into doubt, plaintiffs “must support their

allegations by competent proof ”).

B. The Circumstances of This Case Raised a

Serious Question as to Whether Petitioners’ Claim Was Redressable

As the court of appeals recognized, this is not a case

where standing is self-evident. Petitioners comprise

companies that produce or refine fuel, companies that

develop biorefining technology, and various trade associations (for energy companies, farmers, and convenience store owners). Pet. Br. II-V, 20. They claim

an injury of financial harm from reduced fuel sales.

Id. at 21-22. But the standards at issue here do not

regulate fuel production or sales. Instead, the standards regulate an activity in which petitioners do not

participate: automobile sales. Because petitioners are

not directly regulated by the challenged agency action,

18

they needed to identify evidence showing that automakers who are subject to those standards would

make choices that would “produce causation and permit redressability of injury.” Lujan, 504 U.S. at 562.

Petitioners’ theory is that the state emissions

standards injure them by effectively requiring automakers to sell more “vehicles that use less or no liquid fuel,” which reduces demand for petitioners’

products. Pet. Br. 17. They posit that their revenues

would increase if the standards no longer had legal effect, because automakers would then make and sell

more cars that run on liquid fuel. Id. at 24. That theory would indeed have been “straightforward” (id. at

35) if petitioners had promptly sought review following EPA’s original approval of the waiver in 2013—as

they recently did in challenging the Advanced Clean

Cars II waiver, see supra p. 6 n.4.7

In calendar year 2013, zero-emission vehicles made

up about 2% of light-duty vehicle sales in California.8

To meet the “minimum ZEV credit percentage” requirements of the Advanced Clean Cars I standards,

7 Petitioners have suggested that D.C. Circuit precedent prohib-

ited them from challenging the 2013 action because California

deemed compliance with federal standards to satisfy the state

standards. See Pet. 8 (citing Chamber of Com. of U.S. v. EPA,

642 F.3d 192, 206 (D.C. Cir. 2011)); Pet. Br. 8-9. But California’s

ZEV standards—the main focus of petitioners’ present challenge—never contained a “deemed-to-comply” provision, and

thus could have been challenged in 2013. J.A. 59-60 n.14

(deemed-to-comply provision “only applies to the [greenhousegas] standard”).

8 See Cal. Air Res. Bd., California’s Advanced Clean Cars Midterm Review, App. B, at B15 fig. 9 (Jan. 18, 2017), https://tinyurl.com/yrzdx3t4.

19

automakers needed to grow their zero-emission vehicle sales many times over: they would have to meet a

minimum credit percentage of 4.5% by model year

2018, rising to 22% by model year 2025. Cal. Code

Regs. tit. 13, § 1962.2(b)(1)(A) (2012). Regulators estimated that meeting that 22% credit requirement

would require zero-emission vehicles to comprise

about 15% of light-duty new-vehicle sales by 2025. See

J.A. 16, 32; 78 Fed. Reg. 2112, 2119 (Jan. 9, 2013). Absent the new regulatory requirement, there was no

reason to think automakers would make that shift for

their own independent reasons. Consumers in 2013

were largely unfamiliar with zero-emission vehicles or

had a negative impression of them.9 And automakers

warned that “consumer demand for ZEVs” was so anemic that they might not even be able to meet the requirements for model year 2018. 78 Fed. Reg. at 2140.

But petitioner challenged EPA’s reinstatement of

the waiver nearly a decade later. By then, companies

had been “making investments” for years “in updating

their fleets and growing consumer demand for electric

vehicles.” Pet. App. 12a, 14a. They had built factories

to make batteries and electric cars. See J.A. 103 (noting “billions of dollars of investment in electric vehicle

manufacturing and infrastructure”); J.A. 205-206 (describing facilities in Alabama, Ohio, South Carolina,

Texas, and West Virginia).10 They had created sales

channels and support capabilities for zero-emission

9 See California’s Advanced Clean Cars Midterm Review, App. B,

supra, at B38-B50.

10 See also C.A. Admin. R. Doc. 137, at 2 (July 6, 2021) (Cmt. of

Tesla, Inc.), https://tinyurl.com/5ed42zdy, reproduced at C.A. J.A.

368 (describing factories and facilities across the country).

20

vehicles. See, e.g., J.A. 103-105. And they had invested in “consumer outreach” and “education” to

boost demand.11

Some of those investments might have been in response to the California standards—but not all.

Global demand and industry trends also spurred automakers to invest in developing and marketing zeroemission vehicles.12 And even during the multi-year

period when California’s waiver was withdrawn, automakers had “accelerat[ed their] transition to electrified vehicles across a wide range of vehicle segments.”

86 Fed. Reg. 74,434, 74,494 (Dec. 30, 2021); see id. at

74,486-74,487; Pet. App. 13a-14a.

Whatever their cause, automakers’ enormous investments in electric vehicles since 2013 resulted in a

dramatic increase in demand for zero-emission vehicles between 2020 and 2022. See J.A. 191 (national

market share of qualifying vehicles “almost tripled”

across that two-year period). Consumer demand had

driven zero-emission vehicle prices well above manufacturers’ suggested retail prices. Id. at 192-194. Consumers were willing to accept long waiting periods to

get those vehicles. Id. at 194. Thus, “‘both internal

sustainability goals and external market forces’” were

11 C.A. Admin. R. Doc. 5966, at 3 (Oct. 26, 2018) (Cmt. of Nissan

North America, Inc.), https://tinyurl.com/f7pevw4m, reproduced

at C.A. J.A. 624.

12 See, e.g., J.A. 201-203; C.A. Admin. R. Doc. 29, at 1 (Apr. 29,

2021) (Cmt. of Ford Motor Co.), https://tinyurl.com/3zk2spwc, reproduced at C.A. J.A. 156 (Ford’s plan to “invest $22 billion by

2025 to put electrified vehicle models on the road globally”); C.A.

Admin. R. Doc. 133, App. F, at 9 (Oct. 2018) (Cmt. of California

et al.), reproduced at C.A. J.A. 353 (describing automakers’ plans

to introduce additional models of electric cars), also available at

https://tinyurl.com/2hu47fcw (Attach. 2).

21

pushing “manufacturers to transition toward electric

vehicles.” Pet. App. 24a n.8; see also J.A. 201-203; 86

Fed. Reg. at 74,486.

So it was hardly “obvious” (Pet. Br. 18, 34, 35) in

May 2022 that reduced sales of petitioners’ fuel products were caused by the reinstatement of the waiver—

instead of market forces and automakers’ prior investments and plans. Nor was it obvious that vacatur of

the reinstatement would likely affect automakers’ future behavior in a way that would redress the asserted

injury.

Indeed, evidence submitted by the state respondents indicated the opposite. Publicly accessible sales

data showed that “zero-emission vehicles sold in calendar year 2022” in California “exceed what [the]

standards require.” J.A. 192. For that calendar year,

about 19% of light-duty vehicles sold in the State qualified as zero-emission vehicles under California’s

standards—exceeding the 15% that regulators had

forecast would be needed for compliance. Id. at 191192; see supra p. 19. The lion’s share of those sales

(16% of total light-duty sales) were battery-electric vehicles.13

That represented a surge in sales of battery-electric vehicles that far outpaced early forecasts. The

forecasts had projected that automakers would need

battery-electric vehicles to be just 3.7% of total lightduty sales by model year 2025 to meet the credit requirements of the ZEV standards. J.A. 9. The unexpected consumer shift to battery-electric vehicles

(rather than plug-in hybrids, as forecasters originally

New ZEV Sales in California, supra, https://tinyurl.com/pt526fp5 (displaying 262,076 “BEV” out of 1,581,844

annual light-duty sales when 2022 filter is selected).

13

22

anticipated) had profound consequences for automakers’ compliance with the Advanced Clean Cars I standards. Because battery-electric vehicles can travel

longer distances without emitting tailpipe pollutants,

they yield the most “ZEV credits” for purposes of the

standards. See supra p. 6. So the fact that 16% of

light-duty sales were battery-electric vehicles in 2022

yielded a ZEV credit percentage for that year that was

far above the highest requirement that the standards

would ever impose. See Cal. Code Regs. tit. 13,

§ 1962.2(b)(1)(A) (2012) (22% ZEV credit requirement

starting in model year 2025). And sales in California

in 2022 were also exceeding the most stringent requirements of the fleetwide greenhouse-gas standards, even for future years, because the batteryelectric vehicles also have far lower emissions than

plug-in hybrids. See J.A. 7.

By May 2022, nine years after EPA first granted a

waiver for the Advanced Clean Cars I standards, there

was substantial reason to believe that automakers

would exceed the standards for their own reasons even

without the reinstatement. The court of appeals could

not “presume[]” that petitioners’ challenge was redressable. Kokkonen, 511 U.S. at 377. Nor could it

assume redressability based on petitioners’ “unadorned speculation.” Simon v. E. Ky. Welfare Rts.

Org., 426 U.S. 26, 44 (1976). Article III required the

court to ask whether petitioners had “met their burden” by introducing evidence demonstrating that automakers would “likely react” to a vacatur of the 2022

reinstatement in ways that would increase demand for

petitioners’ products and services. Dep’t of Com. v.

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

23

C. Petitioners Did Not Introduce Evidence

Establishing Redressability

Petitioners did not carry their evidentiary burden.

Indeed, they submitted virtually no argument or evidence bearing on the likely effect of a vacatur on the

market as it existed in 2022.

1. Petitioners’ opening brief in the court of appeals

devoted one sentence to redressability. They asserted

that their “injury is caused by the challenged regulatory action, and this Court can redress that injury by

setting aside the action.” J.A. 118. That single conclusory statement was not supported by any citation

to evidence in the administrative record or elsewhere.

Petitioners attached 14 standing declarations to their

opening brief. See J.A. 120-184. But none of those

declarations was sufficient to carry their burden.

The bulk of each declaration described the declarant’s asserted injuries, with details supporting the

(undisputed) proposition that petitioners and their

members profit from fuel sales. The declarants had

almost nothing to say about the critical question going

to causation and redressability, which “are often ‘flip

sides of the same coin.’” All. for Hippocratic Med., 602

U.S. at 380. That question was whether, in 2022, the

reinstatement of the waiver or the vacatur of that reinstatement would affect automakers’ choices in a

manner leading to changes in fuel sales.

Of the declarants who addressed causation, some

asserted their “understand[ing] that California’s

greenhouse-gas standards and zero-emission-vehicle

mandate reduce the demand for fuel in California.”

J.A. 125, 140, 169, 183; see also J.A. 176. Those assertions were not accompanied by supporting facts or any

discussion of the circumstances in 2022. Other declarants invoked statements from California about how

24

the standards would reduce demand for liquid fuels.

Id. at 129, 136-137, 148, 153, 157, 166, 173, 180. Petitioners now describe those statements as “recent[]

project[ions] that the waiver would ‘reduce emissions

through reductions in fuel production.’” Pet. Br. 38

(citing J.A. 148, 180). But the projections are not “recent” at all. They are from California’s “2012 Waiver

Request”—and state rulemaking documents submitted as part of that request—prepared a decade before

the challenged reinstatement and petitioners’ suit.

J.A. 148, 180; see also id. at 180 (citing state estimates

from 2011). Those outdated sources did not establish

that any reduced fuel sales in 2022 were caused by the

waiver’s reinstatement instead of the dramatic

changes in the market and consumer demand that

predated the reinstatement.14

The declarants who addressed redressability did so

in a single boilerplate sentence asserting that petitioners’ “injuries would be substantially ameliorated if

EPA’s decision were set aside.” J.A. 130, 137, 150,

154, 158, 167, 181; see Pet. App. 21a-22a. Again, not

one of the declarants addressed the state of the market

in 2022, when petitioners filed their suit. Nor did they

say a word about automakers’ behavior at that time,

or the economic and other considerations that would

shape automakers’ response to a judicial vacatur. See

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

Servs. (TOC), Inc., 528 U.S. 167, 201 (2000) (Scalia, J.,

dissenting) (discussing this Court’s “refus[al] to find

14 One declarant also referenced a 2020 report by a Minnesota

agency. J.A. 174; see Pet. Br. 38. But the national market share

of qualifying vehicles “almost tripled” between 2020 and 2022.

J.A. 191. In any event, petitioners’ briefs in the court of appeals

never mentioned effects on the Minnesota market as a basis for

standing.

25

standing based on the ‘conclusory allegations of an affidavit’”); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

898-899 (1990) (“agree[ing]” that an affidavit was “insufficient to establish [the challenger’s] right to seek

judicial review” where it was “‘conclusory and completely devoid of specific facts’” with respect to the key

issue).

Even after the state respondents submitted their

own evidence addressing those subjects and undercutting petitioners’ theory of redressability, supra p. 9,

petitioners did not “meaningfully address[] the redressability of their economic injuries in their reply

brief[].” Pet. App. 28a-29a. Their primary contention

on reply was that the States’ argument “defies common sense.” J.A. 209. They also quoted statements

from the state respondents’ July 2021 comment in support of the reinstatement. Id. at 210; see Pet. Br. 38

(citing J.A. 66). Those statements explained why

EPA’s 2019 decision to revoke the waiver was unjustified based on the record EPA had before it in that year,

see J.A. 66 (citing 84 Fed. Reg. 51,310, 51,337 (Sept.

27, 2019)), and then described California’s “demonstration in its 2012 waiver request,” J.A. 66. Neither

statement could have taken account of the market

data showing that zero-emission vehicle sales tripled

between 2020 and mid-2022. See id. at 191.

And petitioners’ reply (J.A. 208-212) did not meaningfully address that more recent data either—or the

evidence showing that market penetration of zeroemission vehicles in California in 2022 far exceeded

any current or future requirement of the relevant

standards. Nor did petitioners respond to the evidence

indicating that automakers would “ha[ve] a similar incentive to engage in” the promotion and sale of zero-

26

emission vehicles even if the standards were not in effect. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 417

(2013); see Warth, 422 U.S. at 506 (no standing where

evidence suggested that plaintiffs’ injury was “the consequence of the economics of the . . . market”).15

In short, petitioners’ initial submission relied on

the “possibility, unsubstantiated by allegations of fact,

that their situation . . . might improve were the court

to afford relief.” Warth, 422 U.S. at 507. And petitioners’ submission on reply neglected their duty to “support their allegations by competent proof,” once

“challenged on allegations of jurisdictional facts.”

Hertz Corp., 559 U.S. at 96-97.

2. Article III demanded more. This Court has repeatedly rejected theories of redressability that depend on “‘guesswork as to how independent

decisionmakers will exercise their judgment’” instead

of concrete evidence submitted by the party seeking to

invoke federal jurisdiction. Murthy, 603 U.S. at 57;

see, e.g., id. at 73-74; Haaland v. Brackeen, 599 U.S.

255, 293-294 (2023); Lujan, 504 U.S. at 568-571 (plurality opinion); Simon, 426 U.S. at 42-43. “A federal

court cannot ignore” a party’s failure to establish redressability “without overstepping its assigned role in

our system of adjudicating only actual cases and controversies.” Simon, 426 U.S. at 39. Because petitioners did not provide the court of appeals with any facts

showing a likelihood that vacating EPA’s 2022 reinstatement would redress their asserted injuries, the

court properly held that it lacked jurisdiction to decide

the merits. Pet. App. 30a.

15 See generally Nat’l Council for Adoption v. Blinken, 4 F.4th

106, 111-112 (D.C. Cir. 2021) (discussing when standing evidence

may be introduced on reply).

27

No one can doubt petitioners’ desire to obtain an

immediate and definitive judicial resolution of their

merits theories. See Pet. 26-27. But the requirements

of Article III often “mean[] that the federal courts decide some contested legal questions later rather than

sooner.” All. for Hippocratic Med., 602 U.S. at 380.

The court of appeals properly adhered to those requirements here, refusing to reach the merits after petitioners forewent any genuine effort to introduce facts

establishing a likelihood that vacatur of the 2022 reinstatement would increase demand for their products.

II. PETITIONERS IDENTIFY NO VALID BASIS FOR REVERSAL

Having failed “to ‘cit[e] any record evidence’ or to

file ‘additional affidavits or other evidence sufficient to

support’ redressability” in the court below, Pet. App.

24a-25a, petitioners now ask this Court to hold that

they did “not need to supply additional record evidence,” Pet. Br. 17. They advance three theories:

(i) that the Court should “adopt [a] categorical rule”

that this type of government action “alone suffices to

establish redressability,” id. at 17, 18; (ii) that redressability follows from the purported “predictable effects”

of the 2022 reinstatement on automakers, id. at 18;

and (iii) that the duration of the challenged waiver, by

itself, establishes redressability, see id. at 19, 45-47.

But this Court’s precedent forecloses those theories.

And petitioners’ attempt to argue, in the alternative,

that the record contains “plenty [of] evidence” supporting redressability (id. at 37) ignores the gulf between

the referenced evidence and the question that mattered: how automakers would likely have responded

to a decision vacating the waiver in May 2022.

28

A. Government Regulations Implicating the

Use of a Product Do Not Categorically Establish Standing for Producers to Sue

Petitioners first propose a categorical rule that redressability is automatically established in every challenge seeking to “remove a regulatory impediment to

the use of petitioners’ products.” Pet. Br. 17. They

never clarify the scope of the word “impediment.” But

it appears that their rule would cover a flat prohibition

on the use of a product as well as any lesser restriction

that allegedly affects or implicates its use. And the

rule would apply even where (as here) the record contains evidence indicating that a favorable judgment

would not actually redress the asserted injury. That

novel proposal finds no basis in this Court’s precedent.

For a court to conclude that it has jurisdiction, the

“‘specific facts’” matter—as does the “evidence” submitted by the parties. Lujan, 504 U.S. at 561.

1. Petitioners’ proposed rule is at odds

with the precedent they invoke

Petitioners point to Bennett v. Spear, 520 U.S. 154

(1997), as support for their proposed rule. Pet. Br. 2526. That decision reiterated that an injury resulting

from “the independent action of some third party not

before the court” is insufficient to establish Article III

standing. Bennett, 520 U.S. at 169 (internal quotation

marks and emphasis omitted). It also noted that the

bar on standing for injuries caused by independent action does not “exclude injury produced by determinative or coercive effect” of a government action on the

choices of a third party. Id. Bennett thus confirms the

common-sense proposition that a petitioner is not necessarily foreclosed from establishing redressability

just because a third party is “the very last step in the

29

chain of causation.” Id.; see also Lujan, 504 U.S. at

562.

But Bennett hardly supports petitioners’ sweeping

theory that redressability is automatically established

whenever a challenger simply asserts some “regulatory impediment” (Pet. Br. 25) to the use of its product.

To the contrary, the Court’s decision underscores how

much the particular facts of a case matter. In Bennett,

ranchers and irrigation districts challenged a Fish and

Wildlife Service biological opinion that proposed minimum water levels for a water project. But a third

party (the Bureau of Reclamation) “retain[ed] ultimate responsibility” for deciding whether to adopt the

proposal. Bennett, 520 U.S. at 168. With respect to

causation and redressability, the main question was

whether the Bureau would in fact feel constrained to

do what the Service suggested.

Scrutinizing the facts before it, the Court determined that—“in reality”—the biological opinion would

have a “determinative or coercive effect” on the Bureau’s action. Bennett, 520 U.S. at 169. Although the

opinion was theoretically advisory, the Service had

acknowledged “the virtually determinative effect of its

biological opinions.” Id. at 170. And the Solicitor General conceded that this particular opinion would have

“a powerful coercive effect” on the Bureau. Id. at 169.

Before the opinion, the Bureau had operated the water

project “in the same manner throughout the 20th century.” Id. at 170. But the Bureau had notified the

Service that in the future it “intended to act in accordance with” the recommendations in the Service’s opinion.16 Those facts showed that the opinion (not some

16 Resp. Br., Bennett v. Spear, No. 95-813 (U.S.), 1996 WL 396714,

(continued…)

30

other motivation) would cause the Bureau to alter its

behavior. And they allowed the Court to hold that petitioners’ injury would “‘likely’ be redressed—i.e., the

Bureau will not impose [the] water level restrictions—

if the Biological Opinion is set aside.” Bennett, 520

U.S. at 170-171.

The other cases invoked by petitioners featured

similar factual assessments. In Pierce v. Society of the

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

510 (1925), the law prohibiting parents from sending

their children to private schools had “caused the withdrawal from [the plaintiff’s] schools of children who

would otherwise continue.” Id. at 532 (emphasis

added). In CBS, Inc. v. United States, 316 U.S. 407,

414, 423 (1942), an affidavit from the plaintiff radio

network made clear that radio stations were in fact

“cancelling or threatening to cancel their contracts in

order to conform to” the challenged regulations. And

in Northeastern Florida Chapter of Associated General

Contractors v. City of Jacksonville, 508 U.S. 656, 668

(1993), standing rested on petitioner’s allegation that

its members “regularly bid on construction contracts”

and “would have bid on contracts” unavailable to them

due to the challenged program “were they so able.” Because those allegations “ha[d] not been challenged,”

the Court “assum[ed] that they [were] true.” Id. at

668-669.17

at *27 n.14 (July 15, 1996); see also id. at *8; Bennett v. Plenert,

1993 WL 669429, at *3 (D. Or. Nov. 18, 1993).

17 Because of the nature of the equal protection right at issue in

Northeastern Florida, the companies did not need to show that

third parties would have selected their bids—just that the companies were unable to compete on an equal basis. See, e.g., Gratz

v. Bollinger, 539 U.S. 244, 262 (2003).

31

None of those cases supports a categorical rule excusing anyone who sells a product from the obligation

to establish redressability when challenging a regulation implicating the use of that product. And the posture of cases like Bennett and CBS only underscores

the deficiency of petitioners’ showing here. The petitioners in those cases sought to survive a motion to

dismiss, and therefore had the “relatively modest”

burden of advancing “‘general factual allegations’” on

the elements of standing. Bennett, 520 U.S. at 168,

171; see CBS, 316 U.S. at 414, 423; cf. Ne. Fla., 508

U.S. at 668-669. Here, petitioners were seeking to obtain a final judgment. So they needed to “‘set forth’ by

affidavit or other evidence ‘specific facts’” demonstrating that vacatur would likely redress their injury.

Bennett, 520 U.S. at 168; see Lujan, 504 U.S. at 561.

No amount of after-the-fact theorizing can excuse

their failure to do so.

For similar reasons, Energy Future Coalition v.

EPA, 793 F.3d 141 (D.C. Cir. 2015) (Kavanaugh, J.),

does not establish standing here. That case involved

ethanol producers who sought to challenge an EPA

regulation prohibiting automakers from using fuel

containing 30% ethanol when testing new vehicles. Id.

at 143-144. The court of appeals observed that standing can be shown where judicial relief “would remove

a regulatory hurdle” to the use of a petitioner’s product. Id. at 144; see Pet. Br. 4, 13, 28, 29, 36. But that

was the starting point for the court’s analysis—not the

finish line. Unlike the petitioners here, the challengers in Energy Future submitted a detailed standing

analysis, which included an economist’s explanation of

how the regulated parties would react to the sought-

32

after change.18 The court was therefore able to focus

on actual record evidence establishing “substantial

reason to think that at least some vehicle manufacturers would use” the fuel in testing if the challenged regulation were eliminated. Energy Future, 793 F.3d at

144; see also id. at 144 (describing comments from

Ford Motor Company). And the court expressly distinguished the case before it from a case (like this one)

in which studies and other “objective evidence directly

undermined petitioners’ theory of standing.” Id. at

145 n.2.

2. Petitioners’ rule would violate basic

principles of Article III standing

That focus on the particular circumstances of the

case, and the allegations and evidence before the

court, is compelled by core requirements of Article III.

a. Federal courts may not exercise jurisdiction

based on assumptions or speculation. See, e.g., Clapper, 568 U.S. at 414; Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998). After the pleading stage,

they must assure themselves that standing exists by

examining “‘specific facts’” and “evidence” introduced

by the plaintiff. Lujan, 504 U.S. at 561; see All. for

Hippocratic Med., 602 U.S. at 384 (noting the “heavily

fact-dependent” nature of the inquiry). That obligation takes on added significance when the circumstances of a case (or evidence submitted by the

opposing party) create serious doubts about one of the

elements of standing. See generally Hertz Corp., 559

U.S. at 96-97.

18 See Pet. Br., Energy Future, No. 14-1123, 2014 WL 5035232, at

*29-41 (D.C. Cir. Oct. 8, 2014).

33

To be sure, “the nature and extent of facts that

must be” submitted by a party seeking to challenge

government action “depends considerably” on the surrounding circumstances. Lujan, 504 U.S. at 561. A

plaintiff who is directly regulated by the challenged

action, for example, may only need to submit evidence

showing that it is an object of that regulation, and that

it would engage in activities proscribed by the regulation if it were allowed to do so. Supra p. 16. Similarly,

if the action prohibits other companies from using the

plaintiff ’s product, causation and redressability may

follow from basic evidence that the plaintiff sells the

product and third-party companies would have used it

absent the regulation. See, e.g., Energy Future, 793

F.3d at 144.

But observations about the ease of satisfying evidentiary requirements in certain types of cases do not

amount to a categorical legal rule that “suffices to establish redressability” absent evidence. Pet. Br. 17.

As this Court has explained, presumptions run

against jurisdiction—not in favor of it. See, e.g., Renne

v. Geary, 501 U.S. 312, 316 (1991) (“We presume that

federal courts lack jurisdiction unless the contrary appears affirmatively from the record.” (internal quotation marks omitted)); see also Kokkonen, 511 U.S. at

377.

A court must therefore examine the facts and evidence to determine whether—“in reality”—a judgment

addressing a challenged government action would

likely redress a plaintiff ’s asserted injury. Bennett,

520 U.S. at 169. For example, if a regulation makes it

unlawful “for soda manufacturers to use sugar,” Energy Future, 793 F.3d at 144, a plaintiff may establish

standing by pointing to the regulation and introducing

34

evidence that it sells sugar and that some sodas contain sugar. But not every case will be that “simple”

(Pet. Br. 47). If the regulation instead made it unlawful only for soda manufacturers to sell more than 80%

of their beverages with sugar, and the administrative

record established that sugar-free sodas already represented 30% of the market before the regulation, that

plaintiff would have to do more to establish redressability.

As discussed above, petitioners’ case does not resemble the “simple” scenarios, primarily because no

one challenged EPA’s initial decision to grant a waiver

in 2013. In the ensuing decade, automakers made

enormous investments in zero-emission vehicles and

consumer tastes evolved. By May 2022, it was not at

all clear that the presence or absence of the Advanced

Clean Cars I standards would have a determinative or

coercive effect on the mix of cars sold by automakers.

See supra pp. 20-22. Market forces and internal goals

were pushing automakers to continue their shift toward electric vehicles, regardless of California’s regulations. Pet. App. 24a n.8. Those circumstances

demanded actual evidence showing redressability—

not unsupported assertions about “common sense and

basic economics.” Pet. Br. 30.

b. Petitioners’ contrary arguments demonstrate a

misunderstanding of this Court’s precedent. It is true

(Pet. Br. 27) that redressability involves “the relationship between ‘the judicial relief requested’ and the ‘injury’ suffered.” California v. Texas, 593 U.S. 659, 671

(2021). But the necessary relationship is lacking

where the plaintiff fails to prove that “depress[ed]

market demand” for its product in fact “flows from”

(Pet. Br. 27) the challenged regulation, and that vacatur would likely lead to increased demand.

35

Petitioners also contend that, “[a]s far as redressability is concerned, . . . Article III’s demands are the

same whether the plaintiff is directly or indirectly regulated.” Pet. Br. 27. Justice Scalia long ago rejected

that notion in an opinion for the Court. When a plaintiff is not the direct object of the government action it

challenges, “standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.”

Lujan, 504 U.S. at 562. That is because the plaintiff

must “adduce facts” creating a likelihood that the

third parties who are directly regulated will make

“choices . . . in such manner as to produce causation

and permit redressability of injury.” Id. Petitioners

did not do so here.

3. Petitioners’ policy arguments do not

justify their rule

Petitioners eventually resort to a series of “policy”

arguments. Pet. Br. 41; see id. at 41-45. They first

argue that the decision below effectively “require[s]

the endorsement of a directly regulated third party before an indirectly regulated party can sue.” Id. at 38.

That would be a problem, they contend, because directly regulated entities often will be unwilling or unable to assist indirectly affected challengers. See id.

at 42. But the court of appeals did not require petitioners to “provid[e] affidavits from automakers” as a

condition of standing. Id. at 38. The court’s opinion

showed a willingness to consider a variety of other materials (if identified by the parties), including comments in the administrative record and public

statements from industry participants. See Pet. App.

23a-24a, 28a.

And there are a range of evidentiary sources beyond “affidavits from automakers” that bear on how

automakers would likely respond to a vacatur in 2022.

36

The state respondents gathered facts relevant to

standing from public databases, news articles, securities and court filings, government reports, and corporate announcements. See, e.g., J.A. 190-206. Just a

few days after the oral argument caused petitioners to

take the jurisdictional questions seriously, petitioners

located retired auto executives to file supplemental

declarations that purported to speak authoritatively

about automakers’ capabilities and practices. See J.A.

213, 218.19 In similar contexts, other litigants have

relied on a variety of sources. See, e.g., C.A. Ohio Br.

Add. 37-54 (economist’s declaration); Duke Pwr. Co. v.

Carolina Envt’l Study Grp., Inc., 438 U.S. 59, 75-76

(1978) (congressional testimony); Competitive Enter.

Inst. v. FCC, 970 F.3d 372, 383 (D.C. Cir. 2020) (expert’s analysis); Competitive Enter. Inst. v. NHTSA,

901 F.2d 107, 117 (D.C. Cir. 1990) (testimony from administrative hearing).

The decision below thus does not “creat[e] artificially high evidentiary barriers.” Pet. Br. 35. And it

does not obstruct “suits by unregulated plaintiffs who

are adversely affected by an agency’s regulation of others.” Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv.

Sys., 603 U.S. 799, 826 (2024) (Kavanaugh, J., concurring). It simply ensures that any such suits are

19 Those declarations are not before this Court because the court

of appeals held that petitioners failed to establish good cause for

their untimely filing, see Pet. App. 31a-32a, and petitioners did

not seek review of that ruling, see Pet. I; State Opp. 14-15. In any

event, the declarants did not account for 2022 market conditions.

See J.A. 213-222. As to redressability, they merely asserted that

automakers “likely would change their production, pricing,

and/or distribution plans for Model Year 2025” absent California’s standards. J.A. 215, 220. They offered no supporting details, and focused instead on the distinct question of how quickly

automakers could change their fleets and prices.

37

brought by plaintiffs who are, in fact, adversely affected by the challenged action and would benefit from

a favorable decision.

Next, petitioners argue that the “decision below

creates troubling incentives for agencies.” Pet. Br. 43.

They assert that agencies may now “target entire industries with crippling burdens so long as they act

through a conduit and placate that conduit.” Id. 20

Again, however, a plaintiff whose sales are crippled as

the result of an agency action can invoke numerous

sources to demonstrate a likelihood that vacatur

would increase sales. Nor does this case present any

valid concern about “encourag[ing] agencies to act over

shorter time horizons.” Pet. Br. 44. The underlying

waiver was granted in 2013 and addressed standards

that increased in stringency through model year 2025.

Any jurisdictional difficulties petitioners confronted

resulted primarily from their own choice not to challenge the original 2013 action. See supra p. 18 n.7.

Finally, petitioners argue that the court of appeals

“create[d] a one-way ratchet in favor of the regulator

over the regulated” by requiring petitioners to introduce evidence of standing. Pet. Br. 44. They contrast

that requirement with the principle that “[a] State will

20 Petitioners

note that several automakers entered voluntary

agreements with California in 2020 to continue producing more

low- and zero-emission vehicles. See Pet. App. 13a-14a. But that

was not a “troubling” effort by EPA to “insulate” the “entire industr[y]” from “review.”

Pet. Br. 43.

And petitioners

acknowledge that “many” other automakers did not enter any

such agreement. Id. at 37. Nothing prevented petitioners from

attempting to introduce evidence showing that the non-participating automakers would likely change their fleets in response to

a vacatur of the reinstatement.

38

always have ‘a legitimate interest in the continued enforceability of its own statutes.’” Id. (quoting Maine v.

Taylor, 477 U.S. 131, 137 (1986)). But state plaintiffs

do introduce evidence where necessary to show that a

favorable judgment would redress their injuries. See,

e.g., Dep’t of Com., 588 U.S. at 767-768. And this

Court’s recognition that sovereigns have a protectable

interest in effectuating their own statutes hardly

amounts to “bad policy.” Pet. Br. 41; see Maryland v.

King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in

chambers); Maine, 477 U.S. at 137.

The more relevant policy consideration is the one

underlying Article III: that federal courts have limited jurisdiction, and a party seeking to invoke that

jurisdiction must show that its claim falls within those

limits. That policy, which reflects the Framers’ vision

of the proper role of courts in our democratic system,

see All. for Hippocratic Med., 602 U.S. at 380, requires

affirmance here.

B. Unsupported Predictions About the Effect

of a Judgment on a Third Party Are Insufficient to Establish Redressability

Petitioners’ alternative theory for why they did not

need to introduce evidence of redressability fails for

similar reasons. They contend that plaintiffs can establish standing simply by asserting that the “effects

of the challenged government action on third parties”

are “predictable”—and that “no more is needed.” Pet.

Br. 18. The cases petitioners invoke for that argument

actually demonstrate the opposite.

Petitioners portray Department of Commerce as

holding that unsupported inferences and predictions

about “third-party behavior . . . can suffice” to establish standing. Pet. Br. 30; see id. at 31. In truth, that

decision examined whether the plaintiffs “ha[d] met

39

their burden of showing that third parties will likely

react in predictable ways” to a citizenship question on

the 2020 census, and thereby cause harm to the plaintiffs. Dep’t of Com., 588 U.S. at 768 (emphasis added).

The Court answered that question in the affirmative

only after reviewing the district court’s “findings of

fact”—based on extensive “evidence”—which “established a sufficient likelihood that the reinstatement of

a citizenship question” would depress census response

rates. Id. at 767; see New York v. Dep’t of Com., 351 F.

Supp. 3d 502, 578-581 (S.D.N.Y. 2019) (describing expert testimony, statistical data, and agency memoranda). The Court did not rely on “speculation” or

predictions alone. Dep’t of Com., 588 U.S. at 768.21

Nor can petitioners dismiss the significance of the

evidence before the Court in Department of Commerce

on the ground that it merely recounted “historical

practice.” Pet. Br. 31. The plaintiffs in that case did

not just reference the result of questions on prior censuses. They introduced detailed evidence that “overwhelmingly support[ed] the conclusion that the

addition of a citizenship question to the 2020 census

will cause a significant net differential decline in selfresponse rates among noncitizen households.” New

York, 351 F. Supp. 3d at 578 (emphasis added).

The remaining authorities discussed by petitioners

(Pet. Br. 31) do not advance their theory either. The

standing analysis in Massachusetts v. EPA, 549 U.S.

497, 526 (2007), turned on evidence that included “petitioners’ uncontested affidavits.”

That evidence

21 See also California, 593 U.S. at 678 (explaining that the plain-

tiffs in Department of Commerce “relied not only on ‘the predictable effect of Government action on the decisions of third parties’

but also on comprehensive studies, rather than mere ‘speculation’ ”).

40

showed that “the United States transportation sector

emit[ted] . . . more than 6% of worldwide carbon dioxide emissions,” id. at 524; that there was “a causal connection between manmade greenhouse gas emissions

and global warming,” id. at 523, see id. at 525; and

that “[a] reduction in domestic emissions” resulting

from the requested relief “would slow the pace of

global emissions increases,” providing partial redress

for petitioners’ undisputed injuries, id. at 526; see id.

at 522-523.22 In Skyline Wesleyan Church v. California Department of Managed Health Care, 968 F.3d

738, 750 (9th Cir. 2020), the plaintiff similarly offered

“evidence” that regulatory enforcement had caused

health insurers to abandon restrictions on abortion

coverage. Specifically, “seven insurers had offered

plans with abortion coverage restrictions” consistent

with plaintiff ’s religious beliefs, then “all seven complied” with a regulator’s warning to stop offering such

plans. Id. at 750. Both decisions thus turned on actual evidence, not unsupported predictions.

Petitioners nonetheless advance a blanket rule

that no evidence is required if “the behavior of third

parties is predictable rather than speculative.” Pet.

Br. 30. They further contend that only “three

circumstances” exist in which third-party behavior is

sufficiently speculative to require evidence of redressability: (i) where a plaintiff ’s theory relies on “‘counterintuitive’ assumptions,” id. at 32 (citing California,

593 U.S. at 678); (ii) where it relies on an attenuated

“chain of events,” Pet. Br. 32 (citing All. for Hippocratic Med., 602 U.S. at 386); and (iii) where the “legal

impact of a judicial decision is unclear,” Pet. Br. 33

22 The Court also accorded a “special solicitude” to the state petitioners, which does not apply to the private petitioners here.

Massachusetts, 549 U.S. at 520.

41

(citing Murthy, 603 U.S. at 72-73, Brackeen, 599 U.S.

at 294, and Texas, 599 U.S. at 691 (Gorsuch, J., concurring in the judgment)).

Those arguments profoundly misunderstand this

Court’s standing doctrine. Challengers must always

identify “evidence” proving “‘specific facts’” that establish standing. Lujan, 504 U.S. at 561; see FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). And

this Court’s analysis of standing is “not a ‘mechanical

exercise’”—particularly when it comes to suits (like

this one) “by unregulated parties against the government.” All. for Hippocratic Med., 602 U.S. at 384. In

some cases, “familiar circumstances” make standing

“likely,” id., and a plaintiff might be able to meet its

burden with less evidence. In other cases, like those

referenced by petitioners, the Court has pointed to circumstances calling for “far stronger evidence” of causation and redressability. E.g., California, 593 U.S. at

678. But those circumstances are not the only ones in

which plaintiffs are required to introduce any evidence.

Petitioners’ own arguments illustrate the folly of

their proposed rule. Invoking Summers v. Earth Island Institute, 555 U.S. 488, 494 (2009), petitioners argue (Pet. Br. 34) that “it is predictable that when the

government ‘regulates parks, national forests, or bodies of water,’ it will affect the users of those natural

resources.” “In all such cases,” id., petitioners assert,

no “[r]ecord evidence is required,” id. at 30. But Summers held exactly the opposite. It reiterated that a

plaintiff “bears the burden of showing that he has

standing.” Summers, 555 U.S. at 493. The Court insisted on particular evidence showing that the challenged regulations would affect a specific site that at

least one of plaintiffs’ members had “a specific and

42

concrete plan” to visit. Id. at 495. And it rejected a

“hitherto unheard-of test” that would premise standing on a “probability” that “some (unidentified) members have planned to visit some (unidentified) small

parcels affected by the Forest Service’s procedures and

will suffer (unidentified) concrete harm as a result.”

Id. at 497-498. That sort of predictive approach—unsupported by concrete evidence—would “make a mockery of ” the Court’s “prior cases.” Id. at 498.

C. The Duration of the Waiver Does Not, By

Itself, Establish Standing

Petitioners also contend that they were excused

from submitting evidence because the “waiver for certain California standards does not sunset.” Pet. Br.

19. But the fact that the greenhouse-gas standards

plateau starting in model year 2025, and continue at

the same levels in future years, supra p. 6, does not

change the analysis.

1. Petitioners reason that because those standards

“do not expire,” a judicial vacatur “would necessarily

have some effect on vehicle pricing, production, or distribution at some future point.” Pet. Br. 46 (emphasis

added). This Court has previously rejected that kind

of reasoning. See Summers, 555 U.S. at 496 (statements of “‘some day’ intentions,” without “any specification of when the some day will be,” are insufficient

to establish standing); Lujan, 504 U.S. at 564 (same).

And for good reason. Statutes and regulations often

do not sunset. The mere longevity of a challenged regulation is no substitute for “specific, concrete facts

demonstrating that” the plaintiff is harmed by the

government’s action and “personally would benefit in

a tangible way from the court’s intervention.” Warth,

422 U.S. at 508.

43

In this case, moreover, the facts belie petitioners’

assertion (Pet. Br. 19) that the duration of the greenhouse-gas standards eliminates any “plausible dispute” about redressability. By the time of this suit,

sales of battery-electric vehicles far exceeded original

forecasts, and those vehicles generate an outsized

number of ZEV credits and produce very few greenhouse-gas emissions. See supra pp. 6, 21-22. Petitioners did not submit any evidence that the market would

reverse course if those standards were no longer in

place in future years. See supra p. 25.

Nor does the court of appeals’ apparent misunderstanding about the temporal scope of the greenhousegas standards (Pet. Br. 45) compel a different outcome.

The court of appeals lacked jurisdiction because petitioners failed to introduce evidence showing that automakers would likely respond to vacatur by “selling

fewer non-conventional vehicles or by altering the

prices of their vehicles such that fewer non-conventional vehicles—and more conventional vehicles—

were sold.” Pet. App. 22a; see id. at 29a-30a. The

court’s belief that the challenge before it “concern[ed]

only” the reinstatement of the waiver “as to Model

Years 2017 through 2025,” was a consideration that

“further complicated” the redressability analysis. Id.

at 22a (emphasis added); see id. at 24a. Setting aside

that additional perceived complication does not make

up for petitioners’ failure to introduce any evidence addressing how automakers would likely respond to a

vacatur in May 2022. See U.S. Opp. 12-14.

2. Relatedly, petitioners fault EPA and the court

of appeals for the court’s “incorrect” premise about the

duration of the waiver, Pet. Br. 45, which they contend

caused the court to improperly “conflate[] mootness

44

and redressability,” id. at 39. Those arguments are

puzzling.

It has never been a secret that California’s “greenhouse-gas emission standards applied to model year

2025 ‘and subsequent.’” Pet. Br. 45-46 (quoting J.A.

50). That was plainly described in the California Code

of Regulations. See Cal. Code Regs. tit. 13,

§ 1961.3(a)(1)(A); see also Cal. Code Regs., tit. 13,

§ 1962.2(b)(1)(A) (2012) (similar wording in originally

enacted ZEV provision). Petitioners imply that the

lower court’s confusion about the duration of the

waiver arose because EPA failed to “candidly explain[]” the matter until the certiorari stage. Pet. Br.

45; see id. at 46. But the more likely culprit was petitioners’ opening brief below, which told the court that

petitioners were challenging a program “cover[ing] vehicles from model years 2015 through 2025.” C.A. Private Pet. Br. 9; see also C.A. Oral Arg. 33:55-34:13

(argument of petitioners’ counsel that, to defeat standing, “the Government would need to come forward

with some evidence that [automakers have] now

planned around the restatement in a way that couldn’t

be withdrawn by 2025”).

The lack of clarity on this point was perhaps understandable: petitioners’ central focus in this case

has always been on the ZEV standards, which will expire after model year 2025. Pet. Br. 46. That may be

why petitioners urged this Court to resolve the merits

of their statutory claim before “California’s waiver expires at the end of model year 2025,” Pet. 26, even after they had belatedly acknowledged that the

greenhouse-gas standards apply to “Model Years

‘2025 and subsequent,’” C.A. Private Pet. Proposed

Supp. Br. 5. But whatever the source of the confusion

45

below, it did not matter to the ultimate outcome. Regardless of the waiver’s duration, petitioners failed to

show that automakers would respond to its reinstatement (either sooner or later) by making changes that

would increase fuel sales.

In the face of that failure, the court of appeals correctly explained why its decision was based on standing, not mootness: The jurisdictional problem was not

that petitioners’ “standing arguments were sufficient

when originally filed” and then were “mooted by the

passage of time.” Pet. App. 25a; see generally Already,

LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). Petitioners’

“standing arguments were deficient from the start.”

Pet. App. 25a. By the time petitioners filed their challenge in May 2022, shifts in consumer demand and

other transformations in the market made it speculative (at best) that vacating the reinstatement would

lead to increased fuel sales in the future. Petitioners

never even attempted to introduce evidence demonstrating that vacatur of the reinstatement would have

the effects on automakers that they predicted. Pet.

App. 29a-30a.

D. Petitioners’ Post Hoc Attempts to Identify

Evidence on Redressability Fail to Establish Standing

Finally, petitioners argue that if they “were legally

required to produce record evidence to support redressability, plenty such evidence existed.” Pet.

Br. 37. But the few documents that petitioners cited

in the court of appeals did not establish any likelihood

that a vacatur in 2022 would increase fuel sales, as

detailed in Part I.C above. And the additional materials petitioners now point this Court to would not have

established redressability even if petitioners had invoked them in a timely fashion below.

46

Petitioners first highlight (Pet. Br. 38) a statement

from an appendix to California’s 2021 comment letter

regarding the reinstatement. See J.A. 84. But that

statement relied on forecasts from 2017. See J.A. 85

n.17 (citing January 2017 analysis of regulation compliance scenarios); id. at 85 n.18 (citing February 2017

modeling scenario). By 2022, the earlier projections

had been overtaken by actual events. See J.A. 191 (national market share of zero-emission vehicles “almost

tripled” in the period “between 2020 and the third

quarter of 2022”).

Petitioners also invoke declarations that the state

respondents filed along with their motion to intervene,

shortly after petitioners initiated this suit. See Pet.

Br. 13, 34. Those declarations (like petitioners’) asserted a conclusory “expect[ation]” that additional

gasoline-fueled vehicles would be sold if California’s

standards were not in place. J.A. 110, 111; see id. at

115-116. The lack of any details or contemporaneous

evidence for those assertions reflected both time constraints (the intervention declarations were signed

four days after the case commenced) and the reality

that the States’ standing and entitlement to intervene

were independently established for other reasons. Cf.

King, 567 U.S. at 1303 (reasoning that a State suffers

“ongoing irreparable harm” any time it “is enjoined by

a court from effectuating . . . a duly enacted statute”).

Another document referenced by petitioners (Pet.

Br. 47) is outside the record and post-dates the decision below: EPA’s recent request for public comment

on its proposal to incorporate the greenhouse-gas

standards of the Advanced Clean Cars I program into

California’s state implementation plan. See 89 Fed.

Reg. 82,553 (Oct. 11, 2024); 42 U.S.C. § 7407. To be

sure, the underlying state estimates referenced in that

47

proposal (see 89 Fed. Reg. at 82,557 & nn.19-20) are

part of the record, because California submitted them

to EPA in 2021 in connection with the reinstatement

proceedings. See C.A. J.A. 276. But petitioners never

invoked those submissions below. And the estimates

took as their baseline a projection of zero-emission vehicle penetration based on 2019 data, which did not

anticipate the dramatic increase in sales in the following years.23

None of the materials that petitioners belatedly

reference could have satisfied their burden to submit

evidence about how the market would respond to vacatur of the reinstatement in May 2022. And the fact

that they were not “set forth” as “the basis for the

claim of standing” below poses another insuperable

obstacle for petitioners. D.C. Cir. R. 28(a)(7). As this

Court recently reminded litigants, “‘judges are not like

pigs, hunting for truffles buried in the record.’”

Murthy, 603 U.S. at 67 n.7 (alterations omitted). The

court of appeals could not reasonably be expected to

focus on a few sentences scattered across thousands of

pages of record materials, which were never raised in

petitioners’ briefs. Nor could it be expected to recall

isolated assertions in two declarations, filed in support

of one of five unopposed motions to intervene, that

were disposed of by the Clerk more than a year before

oral argument. See C.A. Order (June 30, 2022).

In the end, petitioners are right that this case is

“simple” (Pet. Br. 47)—but not in the way they suggest. They had the burden to introduce evidence establishing that their claim was redressable. Instead

See C.A. J.A. 277 (explaining reliance on “EMFAC 2021”

model); Cal. Air Res. Bd., EMFAC 2021 Volume III Technical

Document, at 6 (April 2021), https://tinyurl.com/2wsxz4uy (explaining use of DMV data through 2019).

23

48

of meeting that obligation head-on, they treated redressability as an afterthought—relying on assumptions and conclusory assertions, supplemented only by

outdated projections. And when confronted with current evidence from the state respondents undermining

their assumption that vacatur of the reinstatement in

May 2022 would lead to increased fuel sales, petitioners offered no evidentiary response. Because petitioners failed to introduce specific facts and evidence

establishing a likelihood of redressability, the court of

appeals properly held that it could not reach the merits.

49

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

TRACY WINSOR

Senior Assistant Attorney General

JOSHUA A. KLEIN

TERESA A. REED DIPPO

Deputy Solicitors General

THEODORE MCCOMBS

CAITLAN MCLOON

ELAINE MECKENSTOCK

JONATHAN WIENER

Deputy Attorneys General

HALEY L. AMSTER

Associate Deputy Solicitor General

March 12, 2025

50

PHILIP J. WEISER

Attorney General

of Colorado

KEITH ELLISON

Attorney General

of Minnesota

WILLIAM TONG

Attorney General

of Connecticut

AARON D. FORD

Attorney General

of Nevada

KATHLEEN JENNINGS

Attorney General

of Delaware

MATTHEW J. PLATKIN

Attorney General

of New Jersey

BRIAN L. SCHWALB

Attorney General of the

District of Columbia

RAÚL TORREZ

Attorney General

of New Mexico

ANNE E. LOPEZ

Attorney General

of Hawai‘i

LETITIA JAMES

Attorney General

of New York

KWAME RAOUL

Attorney General

of Illinois

JEFF JACKSON

Attorney General

of North Carolina

AARON M. FREY

Attorney General

of Maine

DAN RAYFIELD

Attorney General

of Oregon

ANTHONY G. BROWN

Attorney General

of Maryland

PETER F. NERONHA

Attorney General

of Rhode Island

ANDREA JOY CAMPBELL

Attorney General

of Massachusetts

CHARITY R. CLARK

Attorney General

of Vermont

51

NICHOLAS W. BROWN

Attorney General

of Washington

HYDEE FELDSTEIN SOTO

City Attorney

of Los Angeles

By: Michael J. Bostrom

Senior Assistant

City Attorney

MURIEL GOODETRUFANT

Corporation Counsel of

the City of New York