State of Ohio v. EPAState of Ohio v. EPA
Jeffrey B. Wall argued the causes for Fuel Petitioners. With him on the briefs were Eric D. McArthur, Morgan L. Ratner, C. Boyden Gray, Jonathan Berry, Michael B. Buschbacher, Matthew W. Morrison, and Brittany M. Pemberton. Shelby L. Dyl and Samara L. Kline entered appearances.
Benjamin M. Flowers, Solicitor General, Office of the Attorney General for the State of Ohio, argued the causes for State Petitioners. With him on the briefs were Dave Yost, Attorney General, Sylvia May Mailman, Deputy Solicitor General, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Edmund G. Lacour Jr., Solicitor General, Tim Griffin, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J. Bronni, Solicitor General, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia, Stephen J. Petrany, Solicitor General, Theodore E. Rokita, Attorney General, Office of the Attorney General for the State of Indiana, Thomas M. Fisher, Solicitor General, at the time the brief was filed, Daniel Cameron, Attorney General, Office of the Attorney General for the State of Kentucky, Matthew F. Kuhn, Solicitor General, Kris Kobach, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Anthony J. Powell, Solicitor General, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth B. Murrill, Solicitor General, J. Scott St. John, Deputy Solicitor General, Lynn Fitch, Attorney General, Office of the Attorney General for the State of Mississippi, Justin L. Matheny, Deputy Solicitor General, Austin Knudsen, Attorney General, Office of the Attorney General for the State of Montana, Christian Brian Corrigan, Solicitor General, Kathleen L. Smithgall, Assistant Solicitor General, Andrew Bailey, Attorney General, Office of the Attorney General for the State of Missouri, D. John Sauer, Solicitor General, Jeff P. Johnson, Deputy Solicitor General, Mike Hilgers, Attorney General, Office of the Attorney General for the State of Nebraska, James A. Campbell, Solicitor General, Justin D. Lavene, Assistant Attorney General, Gentner Drummond, Attorney General, Office of the Attorney General for the State of Oklahoma,
Theodore Hadzi-Antich and Robert Henneke were on the brief for amicus curiae Western States Trucking Association, Inc. in support of State Petitioners.
Riddhi Dasgupta was on the brief for amici curiae American Commitment, et al. in support of petitioners.
Dale Stern and Patrick Veasy were on the brief for amici curiae California Business Roundtable and California Manufacturers & Technology Association in support of petitioners.
Scott A. Keller and Michael B. Schon were on the brief for amici curiae Western States Petroleum Association, et al. in support of petitioners.
Rafe Petersen was on the brief for amicus curiae The Two Hundred for Housing Equity in support of petitioners.
James K. Vines was on the brief for amici curiae Texas Oil & Gas Association, et al. in support of petitioners.
Paul D. Cullen, Jr. and Kathleen B. Havener were on the brief for amicus curiae Owner-Operator Independent Drivers Association, Inc. in support of petitioners.
Eric P. Gotting and Peter L. de la Cruz were on the brief for amicus curiae The Sulpher Institute in support of petitioners.
John A. Sheehan was on the brief for amicus curiae ConservAmerica in support of petitioners.
Chloe H. Kolman and Eric G. Hostetler, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were Todd Kim, Assistant Attorney General, and Elisabeth H. Carter, Attorney.
M. Elaine Meckenstock, Deputy Attorney General, Office of the Attorney General for the State of California, argued the causes for State and Local Government respondent-intervenors. With her on the brief were Rob Bonta, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Gary E. Tavetian, Supervising Deputy Attorney General, Jessica Barclay-Strobel, Kristin McCarthy, Theodore A. B. McCombs, Caitlan McLoon, and Jonathan Wiener, Deputy Attorneys General, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, Scott Steinbrecher, Acting Deputy Attorney General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Christian Douglas Wright, Director of Impact Litigation, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine, Deputy Associate Attorney General, Scott
Sean H. Donahue was on the brief for respondent-intervenors Public Interest Organizations. With him on the brief were Joanne Spalding, Andrea Issod, Josh Berman, Vera Pardee, Paul Cort, Vickie L. Patton, Peter Zalzal, Andrew P. Su, Eric M. Wriston, Jessica Anne Morton, Sarah Goetz, Ian Fein, David D. Doniger, Emily K. Green, Robert Michaels, Scott L. Nelson, Scott Hochberg, Jay Duffy, and Ann Brewster Weeks. Alice Henderson and Sean A. Lev entered appearances.
Stacey L. VanBelleghem, Devin M. O‘Connor, Kevin Poloncarz, Martin Levy, Tim Duncheon, Jonathan S. Martel, Elizabeth S. Theodore, Ethan G. Shenkman,
Deborah A. Sivas, Matthew J. Sanders, and Stephanie L. Safdi were on the brief for amicus curiae California Climate Scientists in support of respondents.
Cara A. Horowitz was on the brief for amici curiae Senator Tom Carper, Chairman of the U.S. Senate Committee on Environment and Public Works, et al. in support of respondents.
Sara A. Colangelo was on the brief for amici curiae The American Thoracic Society, et al. in support of respondents.
David R. Baake was on the brief for amici curiae Administrative Law Professors in support of respondents.
Kevin K. Russell was on the brief for amicus curiae Professor Leah M. Litman in support of respondents.
Bayron T. Gilchrist, Barbara Baird, Brian Tomasovic, and Kathryn Roberts were on the brief for amicus curiae South Coast Air Quality Management District in support of respondents.
Before: WILKINS, CHILDS, and GARCIA, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: These consolidated petitions for review concern a 2022 decision by the Environmental Protection Agency (“EPA”) to reinstate the EPA‘s prior decision, in 2013, to waive federal preemption of two California regulations regarding automobile emissions under the Clean Air Act. The regulations in question are a standard limiting greenhouse gas emissions and a requirement that a certain percentage of new vehicles manufactured in the state each year be zero-emissions vehicles (“ZEV”), see 13 Cal. Code Regs. §§ 1961.3, 1962.2, respectively. Two sets of Petitioners challenge the EPA‘s decision. The first group of Petitioners comprises seventeen states (“State Petitioners”).1 The second group of Petitioners includes entities that produce or sell liquid fuels and the raw materials used to produce those fuels, along with associations whose members include such entities (“Fuel Petitioners”).2 Both State and Fuel Petitioners claim that the EPA was not authorized to grant California the waiver under the Clean Air Act. Fuel Petitioners argue that the EPA exceeded its statutory authority under the Clean Air Act. State Petitioners, meanwhile, contend that the EPA‘s waiver reinstatement decision was contrary to law because the relevant California regulations are preempted by a separate federal statute, the Energy Policy and Conservation Act of 1975 (“EPCA”), 49
I.
A.
While the Clean Air Act typically grants states broad discretion to meet federal air quality goals, emissions standards for new automobiles are promulgated at the federal level. The Clean Air Act empowers the EPA to promulgate federal emissions standards for those vehicles, see
(a) Prohibition
No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
Id.
(b) Waiver
(1) The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines 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. No such waiver shall be granted if the Administrator finds that—
(A) the determination of the State is arbitrary and capricious,
(B) such State does not need such State standards to meet compelling and extraordinary conditions, or
(C) such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.
(2) If each State standard is at least as stringent as the comparable applicable Federal standard, such State standard shall be deemed to be at least as protective of health and welfare as such Federal standards for purposes of paragraph (1).
(3) In the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver granted under paragraph (1), compliance with such State standards shall be treated as compliance with applicable Federal standards for purposes of this subchapter.
Id.
B.
The D.C. Circuit is familiar with interpreting the Clean Air Act. Shortly following the enactment of Section 209(b), the D.C. Circuit addressed the question of how California should determine that its regulations are more protective than the federal regulations. See Motor & Equip. Mfrs. Ass‘n, 627 F.2d at 1095. California sought to impose regulations on oxides of nitrogen that were significantly more stringent than their federal counterparts. Id. at 1110 n.32. However, due to technological constraints, emissions control devices could not be constructed to meet both California‘s oxides of nitrogen standard and a carbon monoxide standard as stringent as the federal standard. Id. In an effort to impose its high oxides of nitrogen standard, California proposed a carbon monoxide standard that was less stringent than the federal carbon monoxide standard. Id. The EPA allowed California‘s stringent oxides of nitrogen standard to make up for its less stringent carbon monoxide standard, as long as its regulatory program as a whole was more protective than the federal regulations. Id. Dissatisfied with this decision, opponents
After Congress amended Section 209(b) to provide that California need only determine that its standards were, “in the aggregate,” at least as protective as the federal standards, the EPA decided to apply a similar approach to its analysis of whether California‘s proposed standards met any of the waiver denial criteria. See
In the 1960s and 1970s, California‘s emissions standards focused on ozone-generating pollutants, like nitrogen oxides, but over time, California expanded its regulatory program to restrict a variety of other emissions, such as methane and other greenhouse gases. See, e.g., California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption, 43 Fed. Reg. 25729, 25735 (June 14, 1978); California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption Notice of Decision, 49 Fed. Reg. 18887, 18890 (May 3, 1984). In 1993, the EPA approved a waiver of California‘s first ZEV standard, which required an annually increasing percentage of vehicles sold in California to produce zero tailpipe emissions. See California State Motor Vehicle Pollution Control Standards; Waiver of Federal Preemption; Decision, 58 Fed. Reg. 4166 (Jan. 13, 1993).
C.
In recent decades, California has continued to face significant pollution and climate
To combat these challenges, in 2005, California applied for a waiver for a new set of regulations limiting greenhouse gas emissions. See Cal. Air Res. Bd., Low-Emission Vehicle Greenhouse Gas Program, https://perma.cc/VC85-GQ2S (last visited Mar. 27, 2024). The request sparked disagreement among several subsequent presidential administrations. Under President George W. Bush‘s Administration, the EPA initially denied the waiver on the basis that the standards were not addressing “compelling and extraordinary conditions.” California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California‘s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12156, 12159–63 (Mar. 6, 2008). One year later, under the Obama Administration, the EPA determined that its initial decision to deny the waiver had been based on an incorrect interpretation of Section 209(b), and ultimately granted the waiver. California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air Act Preemption for California‘s 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 74 Fed. Reg. 32744, 32745–46 (July 8, 2009).
In 2012, California applied for the waiver at issue in this case, seeking to promulgate a new set of regulations called the Advanced Clean Car Program. See California State Motor Vehicle Pollution Control Standards; Notice of Decision Granting a Waiver of Clean Air Act Preemption for California‘s Advanced Clean Car Program and a Within the Scope Confirmation for California‘s Zero Emission Vehicle Amendments for 2017 and Earlier Model Years, 78 Fed. Reg. 2112 (Jan. 9, 2013). The new regulations included a Low Emission Vehicle (“LEV”) Program, which set emissions requirements for new cars in Model Years 2017 to 2025 with the goal of reducing carbon dioxide emissions by thirty-four percent, and a ZEV Program, which required around fifteen percent of manufacturers’ fleets to be electric cars by Model Year 2025. Id. The EPA initially granted the waiver in 2013. Id. In response, automobile manufacturers in California began making investments to meet both programs’ requirements. See, e.g., Industry Resp.-Intervenor Br. 2–4.
In 2018, after car manufacturers had adjusted their fleets to comply with California‘s Advanced Clean Car Program, the EPA changed its course. It issued a notice of proposed rulemaking to withdraw the portions of the 2013 waiver covering California‘s LEV and ZEV standards. See The Safer Affordable Fuel-Efficient (SAFE)
The EPA withdrew the 2013 waiver on September 27, 2019. The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, 84 Fed. Reg. 51310 (Sept. 27, 2019) (“2019 Withdrawal Decision”). The EPA offered three bases for the withdrawal. Id. at 51328–41. First, the 2013 waiver conflicted with a recent determination by the National Highway Traffic Safety Administration (“NHTSA”) that state greenhouse gas regulations were preempted by a provision of the EPCA that prohibits states from enacting their own fuel economy standards. Id. at 51337–38; see also
Following recission of the 2013 waiver, automobile manufacturers such as Honda, Ford, Volvo, BMW, and Volkswagen entered into independent agreements with California to continue reducing emissions. See Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards, 86 Fed. Reg. 74434, 74458 (Dec. 30, 2021). Under these agreements, the automakers would continue to meet the LEV and ZEV standards in the California regulations. Id. Automakers were motivated to sign these agreements by the investments they had already made in updating their fleets and growing consumer demand for electric vehicles. See J.A. 155–57.
In 2021, under the Biden Administration, the EPA revisited its 2019 withdrawal of the 2013 waiver. California State Motor Vehicle Pollution Control Standards; Advanced Clean Car Program; Reconsideration of a Previous Withdrawal of a Waiver of Preemption; Opportunity for Public Hearing and Public Comment, 86 Fed. Reg. 22421 (Apr. 28, 2021). On March 14, 2022, the EPA reinstated its 2013 waiver for California‘s Advanced Clean Car Program. 2022 Waiver Reinstatement Decision, 87 Fed. Reg. at 14332. As a result of that reinstatement, California‘s LEV and ZEV standards for Model Years 2017 through 2025 came back into force. Id. at 14333. The EPA provided three explanations for its 2022 Waiver Reinstatement Decision: the EPA exceeded its inherent authority to revisit its 2013 decision; it improperly rejected the “whole program” approach; and it improperly considered the NHTSA‘s view of the EPCA, which was beyond the scope of Section 209(b). Id. at 14333–35.
D.
On May 12, 2022, State Petitioners filed a petition for review in this Court challenging the EPA‘s decision to reinstate the 2013 waiver (22-1081). That same day, three groups of Fuel Petitioners filed petitions
In their petition, Fuel Petitioners argue that the 2022 decision was arbitrary and capricious and exceeded the EPA‘s authority under Section 209(b) because climate change is not a “compelling and extraordinary condition,” and California does not “need” its standards to “meet” its climate conditions. See, e.g., Fuel Pet. Br. 10–11. In challenging the EPA‘s determination of California‘s “need,” Fuel Petitioners argue that the EPA‘s aggregate approach is wrong. Id. Meanwhile, State Petitioners claim that by granting a waiver to California, but not to any other state, the EPA has violated State Petitioners’ constitutional right to equal sovereignty. See State Pet. Br. 28–33. State Petitioners also claim that the waiver is contrary to the preemption of state fuel economy standards set out in the EPCA. See State Pet. Br. 33–41.
We hold that neither Fuel Petitioners as to their statutory claims nor State Petitioners as to their EPCA claims establish standing to bring suit, and thus we do not reach the merits of their claims. We reject State Petitioners’ constitutional claim on the merits.
II.
A.
We begin with the question whether either State or Fuel Petitioners have standing based on their assertions that the waiver will cause them economic injury. Fuel Petitioners premise their standing as to the entirety of their petition for review on their claimed economic injury. State Petitioners, meanwhile, premise their standing for their claim that the waiver is preempted by the EPCA on their alleged economic injury.
A showing of standing is essential and unchanging predicate to any exercise of our jurisdiction. Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). [S]tanding is assessed as of the time a suit commences. Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009). The irreducible constitutional minimum of standing contains three elements. Lujan, 504 U.S. at 560. First, the plaintiff must have suffered an injury-in-fact—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Bennett v. Spear, 520 U.S. 154, 167 (1997). Second, there must be a causal connection between the injury and the conduct complained of—the 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. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 561 (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38, 43 (1976)).
A petitioner bears the burden of establishing each of the elements of standing. Chamber of Com. of U.S. v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011). To meet that burden, a petitioner must show a substantial probability that it has been injured, that the defendant caused its injury, and that the court could redress that injury. Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000)). And a petitioner may not wait to attempt to meet its burden of demonstrating standing until after the respondent contests the issue. Rather, absent good cause shown, a petitioner whose standing is not readily apparent must show that it has standing in its opening brief. Id. at 900–01. A petitioner may carry this burden of production by citing any record evidence relevant to its claim of standing and, if necessary, appending to its filing additional affidavits or other evidence sufficient to support its claim. Id.; see also
Whether a petitioner has standing to challenge a particular government action depends, in part, upon whether the petitioner is an object of the action at issue. Lujan, 504 U.S. at 561. When a petitioner is an object of the action it seeks to challenge, causation and redressability are usually easy to demonstrate. Id. But when, as here, the petitioner is not [it]self the object of the government action or inaction he challenges, standing is not precluded, but is ordinarily substantially more difficult to establish. Id. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)). Because any injury to petitioners hinges on actions taken by manufacturers, the petitioners carry the burden of adduc[ing] facts showing that those [third-party] choices have been or will be made in such manner as to produce causation and permit redressability of injury. Chamber of Com., 642 F.3d at 201 (alterations in original) (quoting Ctr. for Biological Diversity v. U.S. Dep‘t of Interior, 563 F.3d 466, 477 (D.C. Cir. 2009)).
As we will explain, these principles compel the conclusion that both State and Fuel Petitioners lack standing premised on their claimed economic injuries because neither group of Petitioners has met their burden of demonstrating that those injuries are redressable.
B.
Fuel Petitioners argue that, by requiring vehicle manufacturers to sell vehicles that use less or no liquid fuel, California‘s LEV and ZEV requirements depress the demand for liquid fuels.7 Fuel Petitioners and their members, who produce and sell
State Petitioners, meanwhile, allege three financial injuries that they contend are caused by the waiver. First, the waiver causes manufacturers to increase the cost of conventional vehicles elsewhere in the country in order to account for the cost of meeting the requirements imposed on manufacturers by the waiver granted to California. State Petitioners explain that because they purchase conventional vehicles, the increase in the prices for those vehicles that results from the waiver causes State Petitioners financial harm. State Pet. Br. 14–15. Second, State Petitioners contend that the greater shift to electric vehicles that results from the waiver will cause State Petitioners to generate less fuel-tax revenue. Id. Finally, State Petitioners argue that the increase in electric vehicles caused by the waiver will affect the States’ electrical grids. In support of their standing claims, State Petitioners offer a declaration from each individual State Petitioner and a declaration from an economist, Benjamin Zycher, Ph.D. Each State Petitioner‘s declaration states that the state purchases conventional (that is, gas- or diesel-powered) vehicles. State Pet. Add. 6–36. In his declaration, Dr. Zycher contends that California‘s ZEV requirement will have several economic impacts on State Petitioners, including an increase in the cost of conventional vehicles nationwide, a
The EPA and California both dispute that State and Fuel Petitioners’ allegations and evidence establish injury and causation sufficient to support standing. EPA Br. 23–28 (arguing State Petitioners fail to demonstrate standing); California Br. 9–15 (arguing both State and Fuel Petitioners fail to demonstrate standing). For example, as to causation, California argues that both groups of Petitioners fail to demonstrate that their alleged injuries are caused by the 2022 waiver reinstatement, rather than the original 2013 waiver or rising consumer demand for electric vehicles more generally. California Br. 11, 14. But this Court need not definitively decide whether either set of Petitioners has established injury or causation. However robust their claims of injury and causation are, State and Fuel Petitioners spend considerably less time explaining how those injuries are redressable. Indeed, even assuming that both sets of Petitioners have established injury and causation sufficient for standing, Petitioners’ standing arguments fail for the same reason: Both groups of Petitioners fall far short of meeting their burden of demonstrating a substantial probability that their alleged injuries would be redressed by a favorable decision by this Court. Am. Petroleum, 216 F.3d at 63; see also Sierra Club, 292 F.3d at 899–900.
Fuel Petitioners assert in their opening brief—without explanation or citation—that this Court could redress their injuries
The difficulty for Fuel and State Petitioners is that their claimed injuries hinge[] on the actions of third parties—the automobile manufacturers who are subject to the waiver. Chamber of Com., 642 F.3d at 201. Redressability, too, hinge[s] on the response of those same automobile manufacturers. Lujan, 504 U.S. at 562. Both groups of Petitioners’ injuries would be redressed only if automobile manufacturers responded to vacatur of the waiver 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.
And, aside from turning on the actions of the automobile manufacturers subject to the waiver, redressability is further complicated by the relatively short duration of the waiver that Petitioners challenge. These petitions for review concern only the EPA‘s decision, in March 2022, to reinstate the waiver it had previously granted California as to Model Years 2017 through 2025. See 2022 Waiver Reinstatement Decision, 87 Fed. Reg. 14337. Thus, to meet their burden of demonstrating redressability, both sets of Petitioners must demonstrate a substantial probability not only that automobile manufacturers are likely to respond to a decision by this Court by changing their fleets in a way that alleviates their injuries in some way, but also that automobile manufacturers would do so relatively quickly—by Model Year 2025. Am. Petroleum, 216 F.3d at 63.
The record evidence provides no basis for us to conclude that manufacturers would, in fact, change course with respect to the relevant model years if this Court were to vacate the waiver. To begin, Petitioners fail to point to any evidence affirmatively demonstrating that vacatur of the waiver would be substantially likely to result in any change to automobile manufacturers’ vehicle fleets by Model Year 2025. The only evidence points in the opposite direction, indicating that automobile manufacturers need years of lead time to make changes to their future model year fleets. In a comment submitted to the EPA during the rulemaking process regarding the EPA‘s 2019 recission of the 2013 waiver, for example, Ford Motor Company stated that its product cycle requires several years of lead time for planning, and that its
Despite the paucity of evidence in the record regarding the redressability of their injuries, neither group of Petitioners attempts 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. Sierra Club, 292 F.3d at 900–01. Nor, for that matter, does either set of Petitioners grapple with the relatively short nature of the waiver they challenge. Rather, all Petitioners seem to have treated redressability as a foregone conclusion. See Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir. 2004) (petitioners lacked standing where they failed to produce actual evidence regarding how the regulated parties would respond to vacatur); Branton v. FCC, 993 F.2d 906, 912 (D.C. Cir. 1993) (A court is rightly reluctant to enter a judgment which may have no real consequence, depending upon the putative cost-benefit analyses of third parties over whom it has no jurisdiction and about whom it has almost no information.).
When asked about redressability at oral argument, counsel for Fuel Petitioners emphasized that redressability—as with each prong of standing—is assessed when a lawsuit is first filed. Oral Argument Transcript 74; see also Del Monte, 570 F.3d at 325 ([S]tanding is assessed as of the time a suit commences.). True enough. But that does not help Fuel Petitioners: Even as of the time this lawsuit commenced, Fuel Petitioners had failed to point to any evidence in the record showing that their alleged injuries were redressable. Del Monte, 570 F.3d at 325. Put differently, the flaw in Fuel Petitioners’ standing arguments is not—as counsel for Fuel Petitioners contended at oral argument, Oral Argument Transcript 74–75—that their standing arguments were sufficient when originally filed, but that their claims have been mooted by the passage of time. Fuel Petitioners’ standing arguments were deficient from the start.
State Petitioners, meanwhile, argue that, to the extent that there is any doubt that they have met their burden of demonstrating causation and redressability, this Court should resolve it in their favor given the special solicitude to which states are entitled when they seek to protect their quasi-sovereign interests. Massachusetts v. EPA, 549 U.S. 497, 518–20 (2007); see also State Pet. Br. 16. We disagree. The special solicitude afforded to states can relax standing requirements only so far. Massachusetts, 549 U.S. at 520. Even the
State and Fuel Petitioners’ sparse treatment of redressability is particularly surprising because, in a previous case, this Court noted that it could not presume redressability in essentially the same circumstances. In Chamber of Commerce of the United States v. EPA, the Chamber of Commerce and the National Automobile Dealers Association, on behalf of their automobile dealer members, petitioned for review in this Court of the EPA‘s decision to grant California a waiver, under Section 209(b), with respect to automobile Model Years 2009 through 2016. 642 F.3d at 196–97. There, the petitioners—automobile dealers who, like the Petitioners in this case, were not directly subject to the waiver—explained that automobile manufacturers’ responses to the waiver injured them in two ways. First, automobile manufacturers would respond to the waiver by altering the mix of vehicles they sold in California and other states; as a result, vehicle dealers would be injured because they would be unable to obtain specific vehicles that their customers wanted to buy. Id. at 201. And second, the California standards would increase automobile manufacturers’ costs and, in turn, increase the prices of the automobiles they manufactured. Id. The automobile dealers believed they would be injured by those increased vehicle costs because they would have to choose whether to keep their prices the same, and accordingly lower their profit margins, or to increase their prices to account for the increased vehicle costs, at the risk of turning away customers. Id.
The Chamber of Commerce Court ultimately resolved petitioners’ claims on mootness grounds, not standing. Id. at 204, 206. But before reaching that conclusion, the Court expressed serious doubts that the petitioners had met their burden of demonstrating redressability. Id. at 205. The record before the Court indicated that vacatur of the challenged waiver may not result in any change on the part of automobile manufacturers. And, the Court noted, Petitioners ha[d] offered no evidence to the contrary, and no evidence that, if the waiver were vacated, [automobile manufacturers] would proceed on a different course more favorable to the petitioners. Id. at 205–06. So even if petitioners’ claims were not moot, their failure to introduce redressability evidence made it—at a minimum—rather unclear whether their claims were redressable.
As the EPA and intervenors correctly recognize, State and Fuel Petitioners’ standing submissions run into precisely the same problem here. In its response brief, the EPA explains in some detail how State Petitioners have failed to substantiate the redressability of their injuries. EPA Br. 26. California, meanwhile, argues that neither group of Petitioners has provided any evidence that vacatur would remedy their injuries. California Br. 13. Further underlining the point, California offers an expert declaration by Joshua M. Cunningham, the Chief of the Advanced Clean Cars Branch of the California Air Resources Board, who explains in specific terms why the Petitioners’ claims are unlikely to be redressed by a favorable decision by this Court. California Add. 84–85; 96–99. Cunningham explains that automobile manufacturers have already made a number of public commitments regarding both vehicle pricing and availability with respect to the remaining model years covered by the challenged waiver; those public commitments would tend to suggest that neither group of Petitioners’ claims are redressable. As Cunningham puts it,
Ultimately, the record evidence, coupled with the filings of the EPA and intervenors, provide this Court with no basis to conclude that Petitioners’ claims are redressable—a necessary element of standing that Petitioners bear the burden of establishing. As in Chamber of Commerce, Petitioners have offered no evidence to the contrary, and no evidence that, if the waiver were vacated, [automobile manufacturers] would proceed on a different course more favorable to the petitioners. 642 F.3d at 205. Rather, both State and Fuel Petitioners offer only assertions, not facts, to support their claims about the likely response of automobile manufacturers to a favorable decision by this Court. Crete Carrier Corp., 363 F.3d at 494. But [s]peculative and unsupported assumptions regarding the future actions of third-party market participants are insufficient to establish Article III standing. Id.10
Petitioners may not proclaim that their injuries are redressable and expect this Court to take them at their word. On this record, redressability poses a fatal stumbling block for both sets of Petitioners. Cato Institute v. SEC, 4 F.4th 91, 95 (D.C. Cir. 2021). We accordingly hold that both State and Fuel Petitioners lack standing premised on their economic injuries because they have failed to meet their burdens of demonstrating that their claims are redressable.
C.
After oral argument, Fuel Petitioners filed a motion to supplement the record and to file a supplemental brief regarding their standing. Fuel Pet. Mot. to Supp. 1. Fuel Petitioners contend that the EPA and California raised for the first time at oral argument the question whether Fuel Petitioners’ claims could be redressed within the relevant model years—an issue Fuel Petitioners argue pertains to mootness, not the redressability of their claims. Fuel Pet. Mot. to Supp. 1–2. Fuel Petitioners argue that they should be allowed to file new evidence with this Court to
No such good cause exists here. We do not think Fuel Petitioners could have reasonably believed that they had adequately demonstrated standing or that their standing was self-evident from the record when they filed their opening brief. Twin Rivers, 934 F.3d at 614. As this Court and the Supreme Court have repeatedly explained, redressability is substantially more difficult to establish when, as here, Petitioners are not directly regulated by the government action they seek to challenge. Lujan, 504 U.S. at 562 (quoting Allen, 468 U.S. at 758). Indeed, as noted above, this Court has previously expressed doubt that petitioners seeking to challenge a Section 209 waiver had demonstrated redressability where they had failed to put any such evidence in the record. Chamber of Com., 642 F.3d at 205. And Fuel Petitioners should have been aware that redressability may pose a particularly challenging obstacle here, considering the relatively narrow timeframe of the particular waiver Petitioners challenge and the evidence in the record showing that automobile manufacturers generally require years of lead time to make changes to their future model year fleets. Yet Fuel Petitioners failed to meaningfully address redressability in their opening brief at all, either by identify[ing] . . . record evidence or by offering the Court evidence of their own. Sierra Club, 292 F.3d at 899.
Second, even if Fuel Petitioners reasonably believed that their standing was self-evident when they filed their opening brief, Petitioners offer no explanation for having failed to address redressability in their reply brief after California raised the issue in its opposition brief. Twin Rivers, 934 F.3d at 614. In this respect, Fuel Petitioners’ motion relies on a false premise: Oral argument was plainly not the first time that California argued that Fuel Petitioners had failed to demonstrate redressability. Rather, as we have explained, California explicitly argued that Fuel Petitioners had offered no evidence regarding the redressability of their injuries, and California provided the Court with a declaration that addressed the point. Having failed even to attempt to respond to California‘s arguments regarding redressability at the reply stage, Fuel Petitioners provide this Court with no reason to allow them to do so now.
III.
State Petitioners also argue that the EPA‘s 2022 decision is
A.
To assess State Petitioners’ standing for this constitutional claim, we again assume that on the merits petitioners would be successful. City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). Assuming State Petitioners’ constitutional theory is correct, Section 209(b) and the EPA‘s 2022 decision violate their constitutionally protected interest in equal sovereignty by leaving them with less regulatory authority over vehicle emissions than California. This claimed injury is akin to the type of dignitary injury recognized in equal protection cases. Heckler v. Matthews, 465 U.S. 728, 739–40 (1984). And, State Petitioners argue, invalidating the decision would redress that injury and restore their sovereign equality by removing California‘s greater authority.
Respondents resist that analysis on the ground that State Petitioners do not ask this court to increase their own sovereign authority over motor vehicle emissions. The States instead seek to reduce California‘s authority.
The Supreme Court has repeatedly held, however, that this type of
B.
Turning to the merits, we reject State Petitioners’ theory. The Supreme Court has held that the Constitution contains a fundamental principle of equal sovereignty. Shelby County, 570 U.S. at 544. But neither the Supreme Court nor any other court has ever applied that principle as a limit on the Commerce Clause or other Article I powers. As explained below, the rationale of Shelby County and the cases on which it relied in fact suggests that the principle imposes no such limit. The parties’ remaining arguments confirm that conclusion. We therefore hold that Section 209(b) is subject to traditional rational basis review for Commerce Clause legislation and—as no one disputes—that it is constitutional under that standard.
Shelby County addressed the constitutionality of the
State Petitioners do not
For several reasons, Shelby County does not support State Petitioners’ request that we apply the equal sovereignty principle as a categorical limit on Congress‘s authority over interstate commerce. First, the central debate in Shelby County was the scope of Congress‘s power to enforce the
But unlike the
Second, in requiring that the VRA‘s coverage formula be sufficiently related to the problem it targets, Shelby County repeatedly emphasized that the VRA was extraordinary, 570 U.S. at 536, because it intruded on states’ power to regulate elections, a sensitive area of state and local policymaking, id. at 545 (quoting Lopez v. Monterey County, 535 U.S. 266, 282 (1999)), which the Framers of the Constitution intended the States to keep for themselves, id. at 543 (quoting Gregory v. Ashcroft, 501 U.S. 452, 461 (1991)). The VRA was therefore a drastic departure from basic principles of federalism. Id. at 535. Because the VRA departed from the traditional balance of state and federal power over elections, the Court required a heightened showing that subjecting specific states to the preclearance requirement was still appropriate considering the nation‘s current conditions. Id. at 555.
Further, State Petitioners ask us not only to venture beyond the bounds Shelby County set for the equal sovereignty principle but also to dramatically increase its force. Recall that Shelby County did not establish a categorical bar against Congress leaving states with different levels of sovereign authority even in the traditionally state-dominated context of voting; it required only that Congress show the disparate treatment is sufficiently related to the problem that it targets. 570 U.S. at 550–51 (quoting Nw. Austin, 557 U.S. at 204). Indeed, the Court reaffirmed Katzenbach‘s holding that Congress could do so with sufficient evidence. Id. Yet State Petitioners ask us to hold that the equal sovereignty principle operates as a categorical bar against treating states differently in the context of Commerce Clause legislation. State Pet. Br. 28–29; State Pet. Reply Br. 10–11. Given that the Constitution grants Congress primacy over interstate commerce, that would be a highly counterintuitive conclusion.
State Petitioners also rely on a series of cases known as the equal footing cases, which Shelby County cited as applying the equal sovereignty principle. See 570 U.S. at 544. Those cases involved congressional attempts to place limits on new states as a condition of admission to the Union and identified
The equal footing cases, however, do not directly apply either outside of the admission context or to Article I powers like the Commerce Clause. Shelby County itself reaffirmed prior holdings that the doctrine is not a bar on differential treatment outside th[e] context of states’ admission into the Union. 570 U.S. at 544. Shelby County, of course, drew on the equal footing cases and concluded that the principle of equal sovereignty they discuss remained highly pertinent in the context of that case. Id. But for all the reasons explained above, Shelby County does not extend the principle even further to any (let alone all) Article I legislation.
The equal footing cases themselves also support that conclusion. Those cases contemplated—though, to be sure, only in dicta—that even if Congress treated states differently at the time of admission, it would not violate the equal footing guarantee so long as it acted within the scope of its plenary powers over interstate commerce. The Court suggested in Coyle that Congress could treat states differently if—instead of using its admission power—it enacted
The parties also debate whether State Petitioners’ theory is supported by the Constitution‘s text, founding era history, and law of nations principles. We address each in turn and conclude these other indicators of constitutional meaning do not support State Petitioners’ theory.
The Constitution does not contain any textual provision suggesting an equal sovereignty limit on Congress‘s Article I powers generally or on the Commerce Clause in particular. As already discussed, the Commerce Clause is a plenary grant of
To the extent the Constitution‘s text sheds light on the question, it appears to cut against State Petitioners, because the Constitution does impose certain equality-based limitations on other Article I powers. For example, the text of
There are, of course, constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice, Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019), such as the doctrine of state sovereign immunity. That category also includes limits on the Commerce Clause, such as the
The equal sovereignty debate at the founding centered on how states would be represented in Congress, with the smaller states arguing for equal representation for each state and the larger states seeking equality for each voter in the form of proportional representation. See Wesberry v. Sanders, 376 U.S. 1, 11–14 (1964) (summarizing the Great Compromise debates); Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 12 The Papers of Thomas Jefferson 270, 279 (Julian P. Boyd ed., 1955) (discussing how the
In fact, as State Petitioners admit, the Constitution includes one provision that expressly allows Congress to enhance the sovereign authority of some states without granting that authority equally to all states. State Pet. Reply Br. 10.
The only affirmative support State Petitioners identify for their theory comes from law of nations principles. They argue that the Founders expected international law of nations principles to govern the states and that those principles included a notion of equal sovereignty that would render federal legislation unconstitutional if it treated states differently. State. Pet. Br. 18; State Pet. Reply Br. 12 (
The nature and extent of equality between the states has been a central debate throughout our country‘s history, from the founding to the admission of new states and beyond. But State Petitioners point us to no meaningful support for their novel request to apply the equal sovereignty principle as a categorical limit on Congress‘s power to regulate interstate commerce. The First and Third Circuits—the only appellate courts to have considered similar arguments—have found Shelby County‘s discussion of the equal sovereignty principle inapplicable to Commerce Clause and Spending Clause legislation for similar reasons. See NCAA, 730 F.3d at 238–39 (Commerce Clause); Mayhew, 772 F.3d at 95 (Spending Clause).
State Petitioners’ request to set aside the Administrator‘s decision on these grounds is denied.
So ordered.