Reply 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.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR PETITIONERS

CARTER G. PHILLIPS

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY PLLC

800 Connecticut Ave NW

Suite 900

Washington, DC 20006

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

JULIA J. MROZ

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

LESLIE B. ARFFA

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

(Additional counsel on signature page)

TABLE OF CONTENTS

Page

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

Argument .............................................................................. 3

A. Petitioners have established redressability

because they are challenging a government

restriction on the sale of their products .................. 4

B. Alternatively, petitioners have established

redressability on the record here .......................... 11

1. Commonsense inferences establish

redressability here ............................................. 11

2. Record evidence confirms that petitioners’

injuries are redressable ..................................... 17

3. A too-exacting theory of redressability would

unnecessarily preclude judicial review ........... 19

C. At a minimum, EPA’s perpetual waiver suffices to

establish redressability ............................................ 21

Conclusion ........................................................................... 24

(I)

II

TABLE OF AUTHORITIES

Page(s)

Cases:

Bennett v. Spear,

520 U.S. 154 (1997)..................................... 2, 4, 7, 8

CBS v. United States,

316 U.S. 407 (1942)............................................. 5, 8

Chamber of Commerce v. EPA,

642 F.3d 192 (D.C. Cir. 2011) ................................ 6

Corner Post, Inc. v. Board of Governors of Fed.

Resrv. Sys.,

603 U.S. 799 (2024)................................................. 9

Czyzewski v. Jevic Holding Corp.,

580 U.S. 451 (2017)............................................... 10

Davis v. FEC,

554 U.S. 724 (2008)............................................... 13

Department of Commerce v. New York,

588 U.S. 752 (2019)................................2, 11, 12, 13

Energy Future Coal. v. EPA,

793 F.3d 141 (D.C. Cir. 2015) ............................ 4, 9

FBI v. Fikre,

601 U.S. 234 (2024)............................................... 21

FDA v. Alliance for Hippocratic Med.,

602 U.S. 367 (2024)......................................... 10, 12

Kisor v. Wilkie,

588 U.S. 558 (2019)................................................. 3

Massachusetts v. EPA,

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

III

Cases—Continued:

National Credit Union Admin. v. First Nat’l

Bank & Trust Co.,

522 U.S. 479 (1998)................................................. 9

Northeastern Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville,

508 U.S. 656 (1993)................................................. 9

Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary,

268 U.S. 510 (1925).......................................... 4-5, 8

Seila Law LLC v. CFPB,

591 U.S. 197 (2020)............................................... 10

Summers v. Earth Island Institute,

555 U.S. 488 (2009)............................................... 11

Warth v. Seldin,

422 U.S. 490 (1975)............................................... 13

Statute:

42 U.S.C. § 7543(b)(1)(B) .......................................... 14

Regulations:

78 Fed. Reg. 2,112 (Jan. 9, 2013) ................................ 6

89 Fed. Reg. 82,553 (Oct. 11, 2024) .......................... 14

Cal. Code Regs. title 13 § 1961.3(a)(1)(A) ............... 22

Other authorities:

Alice in Wonderland (1951) ....................................... 1

Governor Gavin Newsom, Governor Newsom

Statement on Biden Administration’s

Restoration of California’s Clean Car Waiver

(Mar. 9, 2022),

https://perma.cc/T92E-2XM8 ............................. 14

In the Supreme Court of the United States

No. 24-7

DIAMOND ALTERNATIVE ENERGY, LLC, ET AL.,

PETITIONERS ,

v.

ENVIRONMENTAL PROTECTION AGENCY , ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR PETITIONERS

INTRODUCTION

Reading the other side’s briefs is like traveling

through the looking-glass: “Nothing would be what it is,

because everything would be what it isn’t.” Alice in Wonderland (1951). No one disputes that, starting in 2013,

California’s standards forced automakers to produce far

more vehicles that use no or less liquid fuel. No one disputes that, in reinstating those standards in 2022, both

California and EPA said the standards were critical to decreasing the emissions that result from using liquid fuel.

No one disputes that the parties have vigorously fought

over the lawfulness of California’s standards for the last

three years. No one disputes that some automakers intervened here out of concern that vacating the waiver

would advantage competitors less invested in electric

vehicles. Nor does anyone dispute—indeed, the United

(1)

2

States acknowledges—that the President himself has

publicly said that California’s and EPA’s actions have artificially inflated the demand for electric vehicles and

harmed consumers.

EPA and California say only that petitioners had to

and did not prove that California’s standards matter to

automaker conduct by submitting sufficient evidence to

the court of appeals. From the jump, respondents are

wrong about the law. Removing a coercive government

standard that cabins the use of a challenger’s products

provides redress under Article III. See Bennett v.

Spear, 520 U.S. 154, 169 (1997). Respondents reject

that straightforward legal rule. They contend that if

a regulatory target challenges a regulation that acts

on a third party, it must “prove” redressability with

“evidence”—such as affidavits from “economists,”

EPA Br. 43, 44, or facts from “securities and court filings,” Cal. Br. 36—showing how the third party will react to the coercive regulation, independent of market

forces. That rule is contrary to this Court’s precedents

and would lock indirectly regulated entities out of administrative challenges, keeping unlawful government

mandates on the books.

Even if petitioners could not rely on the removal of

California’s coercive standards alone to establish redressability, respondents are still wrong. Petitioners

could rely on the “predictable” effects of electricvehicle mandates and greenhouse-gas emission

standards—namely, reducing the use of liquid fuels.

Department of Commerce v. New York, 588 U.S. 752,

768 (2019). Respondents contend that this is a unique

circumstance in which the market changed faster than

expected, outpacing the government regulations. EPA

Br. 31-35; Cal. Br. 17-22. But respondents primarily

rely on industry averages and certain automakers’

3

plans—which undercut rather than support the idea

that all automakers were irrevocably committed in

2022 to meeting California’s standards. Respondents

also criticize petitioners for submitting “no evidence”

on redressability, EPA Br. 39; Cal. Br. 3, and then

spend pages attacking that evidence in painstaking detail. EPA Br. 35-38; Cal. Br. 45-48.

Along the way, neither EPA nor California fully defends the decision below. All parties now agree that

the court of appeals mistakenly believed that the

waiver is of “relatively short duration” and expires in

2025, Pet. App. 22a, when some of its standards in fact

last in perpetuity, EPA Br. 45; Cal. Br. 43-44. Respondents are thus left to argue harmlessness. They

assert that a regulation that imposes an unlawful government mandate forever is unchallengeable if it tracks

current “market forces” when enacted. E.g., Cal. Br.

20-21; EPA Br. 16-17. “[I]f you find yourself in a place

as absurd as that, you might want to consider whether

you’ve taken a wrong turn along the way.” Kisor v.

Wilkie, 588 U.S. 558, 607 (2019) (Gorsuch, J., concurring in the judgment). It is simply incorrect that a

mandate applicable to more than 40% of the Nation’s

new vehicle market was unchallengeable from the day

it was reinstated in 2022.

ARGUMENT

PETITIONERS’ INJURIES ARE REDRESSABLE

Respondents agree that this case turns on whether

petitioners satisfied Article III’s redressability component. See Cal. Br. 14; EPA Br. 19. First, they contend

that vacating a government regulation prohibiting or

restricting the sale of the challenger’s products is insufficient to establish redressability. That is wrong.

Next, they argue that, on the record here, these much-

4

ballyhooed and much-contested regulations were

pointless from the moment they were reinstated. That

is implausible. Finally, they acknowledge that the

court of appeals misunderstood the perpetual nature of

the waiver but contend that there is nothing petitioners

can do to challenge it, ever. That is shocking. This

Court should reject any one of respondents’ arguments

and reverse.

A. Petitioners Have Established Redressability

Because They Are Challenging A Government

Restriction On The Sale Of Their Products

The removal of the “determinative or coercive effect” of California’s standards on automakers is sufficient to establish redressability. Bennett, 520 U.S. at

169. Respondents mischaracterize this straightforward legal rule, and then attack it as inconsistent with

precedent and basic Article III principles. They are

mistaken on all fronts.

1. Respondents first overstate the breadth of a

commonsense categorical rule. As petitioners have explained (at 25-28), a challenger establishes redressability if a decision in its favor would remove a “direct regulatory impediment” to its product’s use. Energy Future Coal. v. EPA, 793 F.3d 141, 144 (D.C. Cir. 2015).

That rule need not extend to any “regulation implicating the use of [a] product,” Cal. Br. 31, or any “legal

impediment to third-party conduct that would benefit

the plaintiff,” EPA Br. 16. Instead, petitioners’ rule

merely simplifies an analysis that yields an obvious

conclusion: when the government tells automakers to

make more cars that use less fuel, there is “little question” that fuel producers have standing to sue. Energy

Future Coal., 793 F.3d at 144. The same is true of private schools when the government forbids parents

from sending their kids there, see Pierce v. Society of

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the Sisters of the Holy Names of Jesus and Mary,

268 U.S. 510, 534-536 (1925); of networks when the government tells broadcasters not to partner with them,

see CBS v. United States, 316 U.S. 407, 422-423 (1942);

of muffler producers when EPA imposes “a no-muffler

mandate on vehicle manufacturers,” API Br. 6; or of

soda manufacturers when the government prohibits retailers from selling jumbo-sized soft drinks, Chamber

Br. 10.

Or at least one would think. California disagrees

and offers (at 33-34) its own hypothetical that crystallizes this dispute. Assume the FDA forbids soda makers from using sugar in more than 80% of their sodas,

with the express purpose of reducing sugar consumption. Many soda makers do not feel strongly, as 30% of

current sodas on the market are already sugar-free.

But sugar refiners certainly care—they want to increase their market share without government interference, or sell without limits to those soda makers that

would prefer to use more sugar than the average. As

California sees it, even if the cap on sugary beverages

is patently unlawful, sugar refiners cannot sue—and

may forever be time-barred from doing so—because,

for now, the market average exceeds the illegal mandate. Redressability doctrine has never functioned

that way.

And that is just the example California apparently

sees as most favorable to its cause. The absurdities of

respondents’ position only get worse from there. Assume the FCC enacts a regulation prohibiting networks from airing football more than four nights a

week because Americans should diversify their tastes.

Under respondents’ rule, the NFL could not challenge

the regulation because networks currently air games

only three or four nights per week. Similarly, Tesla

6

could not have challenged a law barring car dealers

from devoting more than 5% of their lots to electric vehicles, so long as the electric-vehicle market was in its

infancy. And if California required Starbucks to sell at

least 50% of its coffee to women because it wanted businesses to be more female-friendly, men could not bring

an equal-protection challenge if women are already

half of Starbucks customers.

None of this makes any sense. Respondents’ view

of redressability fails to account for dynamic markets

and the influence of government mandates. It allows

agencies to set unlawful regulatory floors during a

market high, and—with assistance from statutes of

limitations—permanently insulate their illegal regulations from judicial review. California’s (at 19-22) and

EPA’s (at 32-34) discussions of “market forces” are

thus irrelevant. Even in the unlikely event that California’s standards matched what market forces were

producing in 2022, but see pp. 15-17, infra, the regulations illegally locked into place a minimum market

share for electric and low-emission vehicles.1 Removing the waiver allows market forces to once again govern. Fuel producers would be free to sell what the market will bear. At a minimum, they would have the ability to persuade automakers and consumers to shift

away from electric vehicles through lower prices,

1

Respondents repeatedly fault petitioners for not challenging

EPA’s initial waiver in 2013. See, e.g., Cal. Br. 18; EPA Br. 17. As

California acknowledges, however, D.C. Circuit precedent as of 2013

precluded petitioners from challenging the waiver to the extent it applied to California’s greenhouse-gas standards. See Chamber of

Commerce v. EPA, 642 F.3d 192, 206 (D.C. Cir. 2011). California

counters (at 18 n.7) that petitioners could have challenged California’s waiver for the zero-emission-vehicle mandate, but at the time

the two market constraints significantly overlapped. See 78 Fed.

Reg. 2,112, 2,130-2,131 (Jan. 9, 2013).

7

improved marketing, technological innovations, or

otherwise—just as the NFL, Tesla, and coffee drinkers

would remain free to shift others’ market preferences.

2. Respondents next try to distinguish this Court’s

cases establishing or applying the straightforward

principle that the removal of a regulatory barrier to the

use of one’s product establishes redressability. But

they make each case far more complicated than this

Court saw it.

In Bennett, the Court held that an injury can be redressed by removing a “coercive” government regulation that “alters the legal regime.” 520 U.S. at 169.

EPA (at 25) and California (at 29) say that was not

enough to establish standing in Bennett. They note

that the Court also relied on evidence that the Bureau

of Reclamation would have changed course if the Fish

and Wildlife Service’s biological opinion were vacated.

But that misses the point of why the Court looked at

that evidence. The government argued that the biological opinion was merely “advisory” and not actually

binding. 520 U.S. at 169. The Court therefore had to

ask whether “in reality it ha[d] a powerful coercive effect” on the Bureau. Ibid. Here, there is no question

that California’s standards are legally binding on automakers, and accordingly there is no need for a further inquiry into what effects those standards have in

practice. Simply put, if the government had conceded

in Bennett that the biological opinion was binding,

there would have been no doubt about standing.

Regardless, even if Bennett did require something

more than the existence of “coercive” government action, that something was far less than what respondents demand here. It was enough for the Bennett challengers to allege that the Bureau had historically operated the dam “in the same manner” for a long time and

8

then changed its practice after the biological opinion,

which “alter[ed] the legal regime to which the [Bureau]

is subject.” 520 U.S. at 169, 170. All of that is true

here. Automakers manufactured liquid-fuel-powered

vehicles for a long time, until California’s standards

forced them to change. Petitioners have thus “met

their burden” of showing that their injuries “will

‘likely’ be redressed,” at least to some extent, by lifting

California’s standards. Id. at 171.

Respondents’ attempts to distinguish this Court’s

other cases fare no better. Respondents emphasize

that Pierce and CBS involved “factual allegations, of

harms likely to be redressed.” EPA Br. 27; Cal. Br. 30.

But in Pierce, this Court did not rely on “factual allegations” of harm because the “inevitable practical result of enforcing the act”—criminalizing sending children to private schools—would be “destruction of ” the

challenging private schools. 268 U.S. at 534, 536. And

in CBS, it was “enough” that the challenged “regulations purport[ed] to operate to alter and affect adversely” the challenging broadcast companies’ “contractual rights and business relations with station owners.” 316 U.S. at 422. Moreover, even if relevant, the

bare allegations of harm in Pierce and CBS offered far

less evidence of injury than petitioners supplied here

in their declarations alone. See J.A. 211. EPA says (at

26-27) this case is different because Pierce and CBS

concerned the “plaintiff’s business relationship with a

third party,” while here there is “not any transaction

between vehicle manufacturers and fuel producers.”

That ad hoc limit is irrelevant. The key question is the

likely reaction of the directly regulated party.

Nor has the Court stopped with Bennett, Pierce,

and CBS. For example, this Court has recognized that

9

businesses have standing to challenge actions that increase competition for “persons who might otherwise

be their customers”; they do not have to prove that

those potential customers will become actual customers. National Credit Union Admin. v. First Nat’l

Bank & Trust Co., 522 U.S. 479, 488 n.4 (1998). EPA

derides (at 42 n.2) this principle as confined to the

“competitor standing” context. That is yet another

made-up limit. In any event, “[s]uits where one business challenges the under-regulation of another go well

beyond competitor suits.” Corner Post, Inc. v. Board

of Governors of Fed. Resrv. Sys., 603 U.S. 799, 834

(2024) (Kavanaugh, J., concurring).

Respondents also fail to distinguish the most

on-point lower-court decision, Energy Future Coalition. The court of appeals there held that biofuel producers had standing to challenge “a direct regulatory

impediment that prevent[ed]” the use of biofuel.

793 F.3d at 144. Respondents spin that holding as an

“observation” “premised on the court’s determination

that some vehicle manufacturers would actually use”

biofuel if permitted. EPA Br. 27-28; see Cal. Br. 31-32.

The court said the opposite: “ ‘vehicle manufacturers

may have valid business reasons’ other than EPA’s”

regulations not to use biofuels, but “that does not undermine causation” because the plaintiffs were “simply

seek[ing] an opportunity to compete in the marketplace.” 793 F.3d at 144.

At bottom, redressability usually “follows” when a

regulation causes an injury: once the regulation goes

away, so does the injury. Northeastern Fla. Chapter of

Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 n.5 (1993). Despite respondents’

attempts to distinguish various decisions exemplifying

10

that principle, they have not come up with a single

counterexample.

3. Respondents also repeatedly argue that petitioners’ rule cannot be reconciled with basic Article III

precepts. They correctly note that “standing is not dispensed in gross,” but jump to the unrelated conclusion

that there are no “categorical rules” that can simplify

the standing analysis. EPA Br. 28 (quoting Murthy v.

Missouri, 603 U.S. 43, 61 (2024)); see Cal. Br. 33. That

leap is irreconcilable with this Court’s standing doctrine. Here, as in other areas, this Court has adopted

some rules to guide litigants and lower courts. See, e.g.,

Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464

(2017) (“For standing purposes, a loss of even a small

amount of money is ordinarily an ‘injury.’ ”); Seila Law

LLC v. CFPB, 591 U.S. 197, 211 (2020) (challenge to officer unlawfully insulated from removal need not prove

that a lawfully serving officer would have acted differently).

In a similar vein, respondents contend that petitioners’ straightforward rule would gut the redressability

component of Article III standing. EPA Br. 28-29; Cal.

Br. 32-34. It would not. Historically, redressability

has ensured that the right parties are before the court,

which can issue relief tied to a concrete factual context.

See FDA v. Alliance for Hippocratic Med., 602 U.S.

367, 379-380 (2024); see also Cato Br. 5; Children’s

Trust Br. 6-8, 14. This case does not implicate those

traditional functions. To be sure, redressability is usually easy when a party sues to vacate a regulation targeting its product, because there is a perfect match between injury and remedy. But that means only that

Article III is satisfied here, not that it is a dead letter.

11

B. Alternatively, Petitioners Have Established

Redressability On The Record Here

Even if there is no categorical rule of redressability

for challenges to coercive government action, petitioners have satisfied Article III on the record here. The

D.C. Circuit’s demand for additional “record evidence,” Pet. App. 24a, disregarded this Court’s precedent allowing challengers to rely on the predictable

effects of California’s standards. Respondents are

wrong to contend that petitioners cannot rely on such

inferences, or that such inferences are inappropriate

here.

1. Commonsense

inferences

establish

redressability here

In establishing redressability, petitioners are entitled to rely on the “predictable effect of Government

action on the decisions of third parties.” Department

of Commerce, 588 U.S. at 768. The application of that

principle is straightforward here: if EPA’s waiver

were vacated, at least some automakers would predictably produce more vehicles that use more liquid fuel.

a. California alone resists the proposition that a

party can ever rely on predictable inferences to establish redressability. According to California (at 41),

when it comes to standing, “evidence” is always required to establish even the most obvious proposition.

That flat (and inefficient) rule is impossible to square

with this Court’s decisions, as even EPA apparently

recognizes (at 39).

California relies on Summers v. Earth Island Institute, which it says rejected the proposition that parties

can rely on commonsense inferences. Cal. Br. 41-42

(citing 555 U.S. 488 (2009)). This Court has already

disagreed, citing Summers for its observation that it is

12

“predictable” that when a government “regulates

parks [or] national forests,” it will affect the area’s actual users. Alliance for Hippocratic Med., 602 U.S. at

385 (citing 555 U.S. at 494). Notably, this Court in Alliance for Hippocratic Medicine also observed in the

same paragraph that where, as here, the government

regulates a business, that regulation can predictably

cause “downstream or upstream economic injuries to

others in the chain.” Id. at 384. This Court has not

shied away from embracing the obvious.

In arguing that the Court should change course

now, respondents cannot get around Department of

Commerce’s holding that challengers can rely “on the

predictable effect of Government action on the decisions of third parties.” 588 U.S. at 768. Respondents

point out that the record in that case included evidence

about noncitizens’ historical census response rates.

EPA Br. 39-40; Cal. Br. 39. But no one here disputes

that automakers have “historically” reacted to California’s mandatory standards by producing and selling

fewer cars that run on liquid fuel. See Cal. Br. 18-19;

J.A. 110, 112. That is not enough for respondents. Under their view, petitioners had to submit affidavits

proving automakers’ likely future response to a government action, see pp. 17-19, infra, which is exactly

what this Court in Department of Commerce deemed

unnecessary.

Nor does reliance on common sense require courts

to engage in unwarranted guesswork. This Court “has

identified a variety of familiar circumstances where

government regulation of a third-party individual or

business may be likely to cause injury in fact to an unregulated plaintiff.” Alliance for Hippocratic Med.,

602 U.S. at 384. The organizing principle behind these

“familiar circumstances” is the same basic inference

13

applied in Department of Commerce: third parties often react in predictable ways when subject to government action. See 588 U.S. at 785 (Judges “are ‘not required to exhibit a naiveté from which ordinary citizens

are free.’ ”) (quoting United States v. Stanchich, 550 F.2d

1294, 1300 (2d Cir. 1977) (Friendly, J.)).2

At a minimum, this Court can safely rest redressability on the predictable results of government regulation if the regulator itself presupposes that effect. Pet.

Br. 31-32. In addressing redressability in Massachusetts v. EPA, 549 U.S. 497, 526 (2007), this Court “attach[ed] considerable significance” to EPA’s own assessments of regulatory consequences. Respondents

try to minimize this statement by pointing out that this

Court considered other record evidence in Massachusetts. EPA Br. 41; Cal. Br. 39-40. That is irrelevant.

The question is whether respondents’ own admissions

are powerful evidence of the predictable effects of California’s regulations. Massachusetts answers yes.

Here, both respondents’ actions should establish

that it is at least “likely” that these regulations affect

the market by a single car or a single gallon of gas. Davis v. FEC, 554 U.S. 724, 733 (2008). California would

“presumably not bother” urging EPA to reinstate the

waiver if that waiver had and will have no effect. Massachusetts, 549 U.S. at 526 (citation omitted). And

EPA does not explain why it would conduct 11 months

2

California relies (at 16-17, 26) on Warth v. Seldin, 422 U.S.

490 (1975), but that decision fits neatly into this Court’s dichotomy

between impermissible speculation and permissible commonsense inferences. See Pet. Br. 32-33. There, this Court found that challengers to a zoning ordinance lacked standing because there was no reason to believe they would ever be able to buy housing in the zoned

area. 422 U.S. at 505-506 & 506 n.16.

14

of notice and comment to reinstate a waiver that is permissible only if California “need[s] such State standards to meet compelling and extraordinary conditions,”

42 U.S.C. § 7543(b)(1)(B) (emphasis added), when, far

from being necessary, the standards do nothing at all.

EPA and California fail to acknowledge, let alone justify, the incongruity between their present arguments

and past behavior.

Respondents cast their prior actions as outdated in

light of market changes that conveniently occurred

“circa 2022.” EPA Br. 41; see Cal. Br. 17-22. But respondents have continued to act as though the waiver

reinstatement accomplished a great deal. Weeks before petitioners sought judicial review, California’s

governor praised the waiver reinstatement for helping

to “end our reliance on fossil fuels.” Governor Gavin

Newsom, Governor Newsom Statement on Biden Administration’s Restoration of California’s Clean Car

Waiver (Mar. 9, 2022), https://perma.cc/T92E-2XM8.

While the petition for certiorari was pending, EPA accepted California’s projection that the greenhouse-gas

standards would “achieve additional criteria pollutant

emission reductions” through at least 2037. 89 Fed.

Reg. 82,553, 82,557 & n.19 (Oct. 11, 2024) (citing J.A.

93-94). Neither government should be permitted to

justify its regulatory actions by touting their consequences for fuel usage, while maintaining that those

same actions are unreviewable because there are no

consequences whatsoever.

To add insult to injury, EPA admits that it is “reassessing the 2022 reinstatement,” EPA Br. 17, precisely

because President Trump has required the agency to

consider rescinding actions that “function to limit sales

of gasoline-powered automobiles,” id. at 2 (quoting

90 Fed. Reg. 8,353, 8,353 (Jan. 29, 2025)). Let us be

15

clear about what that doublespeak means. EPA is

poised to withdraw the waiver on the ground that the

waiver has been forcing a shift toward electric vehicles

from the moment it was reinstated, up through the present day. What EPA now says was not predictable

three years ago, it will likely soon say has been obvious

(and harmful) the entire time.

b. EPA concedes (at 39) that “commonsense economic principles” can sometimes establish redressability, at least in theory. But EPA again says (at 31-35)

that this case is different because of supposed market

changes in 2022. California agrees (at 17) that, at a

minimum, commonsense inferences cannot establish

redressability here because “another party has introduced evidence” demonstrating market changes. If the

“inevitable reality of the market” were so clear on this

record, EPA Br. 34, it is hard to understand why the federal government—ever a fan of standing objections—

did not make one below. In any event, the evidence respondents now point to does them no favors.

First, respondents argue that automakers in 2022

were meeting or exceeding California’s vehicle standards. EPA Br. 32-33; Cal. Br. 21-22. There are several

problems with that argument. Most notably, bare compliance with government regulation suggests a regulatory effect, not the absence of any effect. To the extent

respondents rely on data that automakers were exceeding the California standards, they primarily rely on average sales in California. See Cal. Br. 21 (citing J.A.

191-192); EPA Br. 32 (citing J.A. 95-97). Averages are

no help: even if some automakers had independently

and irrevocably moved toward more electric vehicles

by 2022, that does not suggest that all automakers had

16

done so.3 And even if automakers in California had on

average increased electric-vehicle production beyond

the floor, that does not indicate every automaker had

irrevocably followed suit in each of the 17 States that

adopted California’s standards. See J.A. 211 (citing

Ryan Felton, The EV Question for Auto Executives:

How Fast To Make the Shift? Wall St. J. (Feb. 22, 2023)

(“Some companies are racing to convert entirely to

electric vehicles, but others see caution flags.”)).

Second, California points (at 20-22, 25) to rising

electric-vehicle production when the waiver was not in

place. California highlights (at 25) that the national

market share of zero-emission vehicles “tripled between 2020 and mid-2022.” But it fails to mention that

this tripling was from almost nothing to a 6.5% nationwide market share. It is unclear why California believes that this nationwide 6.5% level suggests that the

markets had outpaced California’s regulations, when

for the same year those regulations set a 14.5% floor

(accounting for credits) for California and the 17

tagalong States. J.A. 191, 192; see Pet. Br. 9-10 & n.4.

And even that supposedly free-market response was

tainted by government regulation: the waiver rescission was immediately challenged, and the prospect of

the waiver’s reinstatement was clear by early 2021. See

Pet. Br. 2.

Third, respondents offer statements from some automakers—most of whom intervened in this case—

about their commitment to and investments in electrification. EPA Br. 32-35; Cal. Br. 19-21. As petitioners

EPA cites nothing for its suggestion (at 34-35) that petitioners needed to provide evidence that a particular automaker would

change course absent the standards. Although not required, petitioners identified Toyota as one such candidate. See J.A. 210 (citing J.A.

99).

3

17

have explained (at 37), these statements, and the fact

of automakers’ intervention, prove exactly the opposite. These same automakers cut a deal with California

to commit to the standards in exchange for certain benefits. See Pet. App. 13a-14a. They intervened precisely

because if the waiver were vacated—and the market

were allowed to function freely—they would face “a

‘competitive disadvantage’ because they have already

invested in ‘electrified vehicle models.’ ” J.A. 211 (quoting C.A. Industry Resp.-Int. Br. 17). In short, none of

respondents’ evidence remotely suggests that every

automaker in 18 States would freely choose to meet or

exceed California’s standards.

2. Record

evidence

confirms

that

petitioners’ injuries are redressable

Even though nothing more was required here, petitioners directed the court of appeals to evidence confirming what common sense dictates. Respondents repeatedly assert that petitioners presented “no evidence” to support their standing, even as they devote

pages and pages to picking apart each bucket of evidence that petitioners offered. Cal. Br. 3, 45-48; EPA

Br. 35-38. Petitioners satisfied whatever evidentiary

burden was incumbent upon them.

First, respondents quibble with the evidentiary

value of California’s own analysis supporting the

waiver reinstatement. California dismisses (at 46) its

July 2021 report predicting that the standards would

suppress demand for liquid fuels because that prediction “relied on forecasts from 2017.” See J.A. 84. EPA

likewise criticizes (at 37, 41) as stale California’s 2012

analysis of the standards’ effects. But California reiterated its earlier predictions in 2021 to urge reinstatement of the waiver. See J.A. 64-65, 84. Nor did EPA

believe the analysis was outdated; it found at the time

18

of the reinstatement that “California needs the ZEV

sales mandate and GHG standards at issue to address

compelling and extraordinary air quality conditions in

the state.” Pet. App. 64a-65a. If these projections

were reliable enough for California in 2021 and for

EPA in 2022, they should have been good enough for

petitioners in 2022.

Second, respondents assail petitioners’ 14 standing

declarations as “conclusory” and lacking “any details.”

Cal. Br. 46; EPA Br. 17. The declarations speak for

themselves. J.A. 123-184. Declarants noted California’s representations about the effect of the standards

and detailed how the suppression of the demand for

fuel would injure petitioners’ businesses. See, e.g., J.A.

148, 174, 180. One declarant even cited 2020 findings

from a Minnesota agency predicting the standards

would “cause” fuel reductions in the State. J.A. 174.

Although California protests (at 24 n.14) that petitioners did not rely on “effects on the Minnesota market”

in particular “as a basis for standing,” Minnesota’s

market is merely an example of the “demand depression” that would occur “in the other Section 177 states.”

J.A. 174.

Third, respondents contend that petitioners did not

“introduce evidence” about automaker behavior. Cal.

Br. 37 n.20; EPA Br. 34-35. But petitioners pointed below to statements from intervening automakers confirming that some (non-intervening) automakers would

likely change their production plans absent the waiver.

J.A. 211. Petitioners also cited Toyota’s record comment (at J.A. 99) suggesting that it was not irrevocably

committed to electrification and public reporting on the

same. J.A. 210-211. Respondents offer no response.

Having brushed aside all this evidence, respondents

try to come up with something—anything—petitioners

19

could have done to establish redressability on this record without being beholden to the automakers that

were themselves striking deals with California. See

Pet. App. 24a-25a. Respondents suggest theoretical alternatives, like “public statements from industry participants,” Cal. Br. 35, and affidavits from “economists,” EPA Br. 44. But they quickly reject similar

sources. Cal. Br. 36 n.19 (rejecting expert declarations

petitioners tried to offer); EPA Br. 37-38 (rejecting reliance on a state regulator’s statements). Apparently,

the only evidence that could meet their or the D.C. Circuit’s high bar is exactly what petitioners could not

obtain—an affidavit from an automaker detailing its

production plans in the hypothetical future world in

which California’s standards no longer existed.

3. A too-exacting theory of redressability

would unnecessarily preclude judicial

review

Respondents also dispute the policy implications of

the heightened redressability standard they defend.

They claim that affirming the decision below will not

have any wider effects—or if it did, those effects would

be just fine. EPA Br. 43-45; Cal. Br. 35-38. Neither

defense works.

a. Respondents downplay the catastrophic implications of the decision below for indirectly regulated

parties. Respondents do not seriously dispute that indirectly regulated entities will often be unable to obtain affidavits from directly regulated parties. But

they contend that there is no such affidavit requirement, and so the decision below will not “obstruct ‘suits

by unregulated plaintiffs who are adversely affected by

an agency’s regulation of others.’ ” Cal. Br. 36 (quoting

Corner Post, Inc., 603 U.S. at 826 (Kavanaugh, J., concurring)); EPA Br. 43-44. Of course it will. Again, it is

20

hard to see any option other than third-party affidavits

that would satisfy the court below and respondents.

See pp. 17-19, supra. Their demand for “additional affidavits” will make future challenges expensive and arbitrary. Pet. App. 24a (internal quotation marks omitted).

Respondents alternatively minimize the decision below as fact-bound. EPA Br. 44; Cal. Br. 35. The dozen

amicus briefs in support of petitioners confirm that the

implications of this case go well beyond the present dispute. As amici attest, the D.C. Circuit’s “heightened

redressability requirement” will “profoundly harm” all

manner of litigants, including “[h]ouses of worship and

other religious organizations,” Foothill Church Br. 16;

property owners, Texas Royalty Council Br. 1; and

groups that represent “low income and minority communities,” Two Hundred for Homeownership Br. 19.

Even groups that “usually disagree[] with petitioners

. . . including on the merits of their present suit” support correcting the mistaken standing decision below.

Children’s Trust Br. 1; cf. Chamber Br. 4 n.2 (noting

that amici’s members “do not have a unified view of the

underlying merits”).

b. Respondents largely do not contest the other

ramifications of the decision below; they are simply untroubled by them. For example, they do not contest

that the decision creates a one-way ratchet in favor of

the regulator over the regulated. EPA defends (at 45)

the disparity on the theory that targeting petitioners’

products does not place them among “the regulated.”

Only the government could aim at one industry

through another, and then claim the real objects of its

regulation are mere bystanders. Meanwhile, California champions (at 37-38) a State’s ability to defend its

21

laws without explaining why entities targeted by government action should not have a corresponding right

to challenge those laws.

c. Finally, respondents brush off the court of appeals’ apparent conflation of mootness and redressability. Respondents argue that the court recognized that

“redressability was to be assessed at the time petitioners sought judicial review.” EPA Br. 46; Cal. Br. 45.

The court no doubt said as much at one point. But the

court also said that redressability was “complicated by

the relatively short duration of the waiver” and emphasized that manufacturers need “years of lead time to

alter their production plans”—both considerations that

sound in mootness. Pet. App. 22a, 23a-24a. Shifting

mootness concerns to the redressability inquiry has

important consequences, including failing to hold the

government to the “formidable standard” of showing

that the court could grant no effective relief. FBI v.

Fikre, 601 U.S. 234, 243 (2024); see Pet. Br. 39-41.

C. At A Minimum, EPA’s Perpetual Waiver Suffices

To Establish Redressability

The court of appeals was wrong for the reasons already given. But at a minimum, this Court should reverse because the parties now agree that the decision

below rests on a critical mistaken assumption: that

California’s standards ended with model year 2025.

EPA Br. 45; Cal. Br. 43. In fact, the greenhouse-gas

emission standards will remain enforceable under the

waiver in perpetuity. See Pet. Br. 45-47. Respondents

blame petitioners for the court of appeals’ error and

contend that it was harmless anyway. Neither is right,

and the fundamentally flawed decision below should

not stand.

California first suggests (at 44) that petitioners are

to blame for the court of appeals’ error. That is flatly

22

untrue. California’s greenhouse-gas standards increase in stringency each model year from 2017

through 2025 and then continue at the 2025 level for

“subsequent” model years. Cal. Code Regs. tit. 13

§ 1961.3(a)(1)(A). But EPA described its 2022 waiver

as covering only “model years (MYs) 2017 through

2025.” Pet. App. 57a. Not until EPA opposed certiorari did it declare (at 13) that because California’s

greenhouse-gas standards do not “fully terminate with

model-year 2025,” neither does the waiver. Needless

to say, only respondents knew how to understand their

own actions, and neither corrected the D.C. Circuit’s

statement at oral argument that the standards would

end in 2025. C.A. Oral Arg. 29:43-29:45. Respondents

were apparently content to rest on the court of appeals’

mistaken understanding until after they prevailed.

Finger-pointing aside, the court of appeals’ error

was far from harmless. Contra Cal. Br. 45; EPA Br.

45-46. As EPA acknowledges, the court’s mistaken understanding of the waiver led it to “believe[] that petitioners could show redressability only by demonstrating that vehicle manufacturers would change their conduct ‘relatively quickly.’ ” EPA Br. 45 (quoting Pet.

App. 23a). The court demanded more evidence of redressability because automakers supposedly “need

years of lead time” to change their fleets, and it

doubted that automakers could make such changes by

model year 2025. Pet. App. 23a. But the redressability

analysis is far less “complicated” than the court of appeals thought it was. Id. at 22a.

With no reasoning below left to defend, respondents

now contend that a waiver setting a permanent cap on

vehicle emissions is unchallengeable—and was unchallengeable the moment it was reinstated—because it

might not have any impact. EPA Br. 45-46; Cal. Br. 45.

23

This finale reinforces the absurdity of respondents’

theory of redressability. In their view, to bring a challenge when the waiver was reinstated, petitioners had

to predict market forces years in the future and prove

that California’s standards would outpace the market

at some point between 2022 and eternity. And if petitioners could not make that showing, they would be out

of time and out of luck if market forces later shifted.

Article III’s redressability requirement has never been

applied to prevent vacatur of an unlawful regulation

setting a permanent ceiling on the use of a challenger’s

products. This Court should not need an economist to

tell it as much.

24

CONCLUSION

For the foregoing reasons and those in petitioners’

opening brief, this Court should reverse the judgment

below.

Respectfully submitted.

CARTER G. PHILLIPS

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

Counsel for American Fuel

& Petrochemical Manufacturers, Domestic Energy

Producers Alliance, Energy

Marketers of America, and

National Association of

Convenience Stores

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

JULIA J. MROZ

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

LESLIE B. ARFFA

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

MICHAEL BUSCHBACHER

JARED M. KELSON

BOYDEN GRAY PLLC

800 Connecticut Avenue NW Counsel for Valero Renewable Fuels Company, LLC

Suite 900

Washington, DC 20006

BRITTANY M. PEMBERTON

Counsel for Clean Fuels De- BRACEWELL LLP

2001 M Street NW

velopment Coalition, ICM,

Suite 900

Inc., Illinois Corn Growers

Washington, DC 20036

Association, Kansas Corn

Growers Association, MichCounsel for Diamond Alterigan Corn Growers Associanative Energy, LLC and

tion, Missouri Corn Growers Association, and Valero Valero Renewable Fuels

Renewable Fuels Company, Company, LLC

LLC

25

RICHARD S. MOSKOWITZ

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS

1800 M Street NW

Suite 900 North

Washington, DC 20036

Counsel for American Fuel

& Petrochemical Manufacturers

APRIL 9, 2025

MATTHEW W. MORRISON

SHELBY L. DYL

PILLSBURY WINTHROP

SHAW PITTMAN LLP

1200 Seventeenth Street NW

Washington, DC 20036

Counsel for Diamond Alternative Energy, LLC, Iowa

Soybean Association, The

Minnesota Soybean Growers Association, and South

Dakota Soybean Association