On Wednesday, the Supreme Court heard oral arguments for Diamond Alternative Energy, LLC v. EPA.
Category
🗞
NewsTranscript
00:00:00waiver would redress their injuries in two ways. First, as Justice Kavanaugh explained in Energy
00:00:05Future Coalition, part of the injury in a case like this one is the denial even to compete in
00:00:10the marketplace. Vacating the waiver redresses that injury perfectly. Indeed, it's the only thing
00:00:16that can. Second, even setting aside that clear rule, this court recognized in Department of
00:00:22Commerce that litigants may rely on common sense inferences about third-party behavior.
00:00:27It doesn't take much common sense to figure out that if California limits the number of cars that
00:00:32can run on gas, automakers will make fewer cars that run on gas. Remember that we're here because
00:00:39California asked for and EPA granted a waiver because California said it needs its own standards.
00:00:46California even intervened by telling the court below that its standards are likely to reduce
00:00:51fuel consumption. The common sense inference is that this waiver matters in the real world,
00:00:56not that it is completely meaningless, but if we needed hard evidence, we had plenty of it,
00:01:00five kinds. One, our declaration showing that California's standards have historically harmed us.
00:01:07Two, California's and EPA's actions and statements in 2021 and 2022 saying that their standards are
00:01:15likely to reduce fuel consumption. Three, California's two expert declarations from CARB officials in 2022
00:01:21saying that their standards are likely to decrease fuel consumption. Four, the intervening automaker's
00:01:28admission that without the waiver some of their competitors were likely to back away from
00:01:32electrification. And fifth, Toyota's comment and public reporting also indicating that some automakers
00:01:38would back away from electrification without the waiver. Taken together, that is more than enough
00:01:42evidence to establish redressability. I welcome the court's questions.
00:01:46Mr. Wall, it's taking a step back from the evidence you just provided or the points you just
00:01:54made. What is your rule? How would you articulate your categorical rule?
00:01:58Our rule is that when the government denies a party the ability to compete in a marketplace
00:02:05and the party sues to have that market restriction lifted, there is redressability because the party
00:02:11is asking for the thing to be taken away that's causing its injury. Is there some degree of
00:02:17hindrance to that party that has to be shown to apply your rule? I don't think so because we're not
00:02:22talking about just sort of some indirect impediment. I'm talking about a market restriction that directly
00:02:28tilts or forecloses the playing field. It says you can't sell your product, your good, your service into a
00:02:34particular market, either wholly or here partially, up to some certain cap.
00:02:38So how would you show that?
00:02:40Well, what I'd say is you show it by the nature of the injury. So just like in a competitor standing
00:02:46case, like in National Credit Union, if you come in and you say the government is under-regulating
00:02:50one of my competitors, right, this court said that's competitor standing. Government agrees with
00:02:54that. That's footnote two of their brief. This is the same thing. It's just that instead of picking
00:02:59winning winners and losers among particular market participants, you're picking winners and
00:03:04losers as among markets. So if you come in and you say, I have something that yesterday I could
00:03:09freely sell and today I cannot freely sell it as a result of a government regulation that directly
00:03:14forecloses me, you have standing on our view. So Mr. Wall, how is that consistent with the courts
00:03:21holding in Worth versus Selden? I know you talk about it briefly in one of your footnotes,
00:03:28but that seems to me to map on exactly with what you're now saying. There was an
00:03:33exclusionary zoning restriction that prevented home builders and others from building in a particular
00:03:41area and the court found that that was not sufficient for addressability. So the court looked at it more
00:03:47as a sort of predictable effects type case and said, well, we actually think it's very speculative whether
00:03:53you could get into the neighborhood at all. And so the court saw that case through a very different
00:03:58lens. And of course, nobody was there. But I guess that I guess I'm questioning whether or not it really
00:04:02is a different lens. I mean, the court said, if you're right, that the rule is just a common sense,
00:04:10you don't really have to have evidence, we just sort of infer based on the relationships in the
00:04:15marketplace and whatnot. That's exactly what was happening there. The home builders said,
00:04:20we aren't going to be able to build our houses, our single family homes in this zoned off area.
00:04:28And so we said, I think, when you look at the case, that there's got to be evidence that there
00:04:35actually would be home building in this area absent that regulation. And I think that's the same thing
00:04:41as saying here, that you can't just rely on the fact that we would think that lifting this restriction
00:04:47would allow for more cars to be built. There actually has to be evidence that there would
00:04:54be more cars built, you know, fuel ingesting cars in this environment.
00:05:00So, Justice Jackson, what I'd say is the court has sort of two lines of cases.
00:05:04And that's why we've made two arguments, because we think we went under both lines.
00:05:08You have some sets of cases like the equal protection cases or the competitor standing cases,
00:05:13where you say that the nature of the injury gives you causation or addressability.
00:05:17It's the ability not, you're denied the ability to compete in the marketplace.
00:05:20You're discriminated against no matter what would happen in the marketplace itself.
00:05:24And then you have certain lines of cases, like Department of Commerce or Worth v. Selden,
00:05:28where you say, look, we're going to look at what the likely predictable effects are in the market.
00:05:33And what distinguishes the two? Is it that we have
00:05:37corporations in one? How would we know which line we're supposed to apply in this situation?
00:05:44I think it depends on whether the court believes that the nature of the injury
00:05:48gives you causation or addressability. So, as I understand the competitor standing cases,
00:05:53and I think they're correctly decided, if I'm in a market and I allege or show that I am competing
00:05:58with Mr. Klein in a market, and the government comes in and tilts the playing field toward Mr. Klein,
00:06:04I have standing, because by definition, the nature of the injury is that the government tilted the
00:06:09playing field. And I have addressability, because I want the playing field to be level again. That's
00:06:13what I'm asking for. And we see our cases exactly the same. And I think the D.C. Circuit got this
00:06:20exactly right. I'm sorry, though, because I think what Justice Jackson may be getting to is you want us
00:06:28to announce an absolutist rule, which in the standing area is very difficult to do, because it really does
00:06:35rely so much on facts. You've marshaled many facts to support your standing. In this case, the D.C.
00:06:45Circuit thought, erroneously, it's been conceded by the government, that this regulation would expire
00:06:52in 2025. So let's assume you came in a month before the expiration, and that the rule was never going to
00:07:01be renewed. Okay? Why would you have standing? Under your rule, merely because the barrier exists,
00:07:12you have standing. But what the court here said is, you might have standing, but you don't have
00:07:18redressability, because the manufacturers can't change their production right now. And this rule expires.
00:07:24They made a mistake on that. It's conceded. So isn't the issue whether the confluence of all the facts
00:07:33you put forth show that this is more like the D.C. Circuit case that Justice Kavanaugh relied upon,
00:07:43or more like the Chamber of Commerce versus EPA case, where he said that the affidavits back and forth
00:07:53showed that that particular set of claimants wouldn't really be successful in selling their products.
00:08:02So why isn't it always a factual dispute? So here's the importance of the rule,
00:08:08Justice Sotomayor. Here's why you need one, and here's why I think the D.C. Circuit was right to adopt
00:08:12one in Energy Future Coalition. The importance of the rule is that, absent the rule, if you walk in
00:08:19and you put a market restriction on, at a time when you think the restriction doesn't matter,
00:08:24or at least you can debate whether it matters, then the other side will always say,
00:08:29aha, you don't have predictable effects, you can't satisfy Department of Commerce,
00:08:33you can't satisfy Worth. And here it's even worse than that. There is a 60-day time limit.
00:08:37What you want then is an advisory opinion. And at a certain point, we move from
00:08:44giving you relief or not, but that's not this case.
00:08:48Justice Sotomayor, I want to be very clear.
00:08:49Why would we announce a rule that's not pertinent to this case?
00:08:52I do not want an advisory opinion. They now acknowledge.
00:08:55So they now acknowledge that they were wrong. They'll have to answer as to why
00:09:02they're even defending the rule if it has no effect, which is my illogical question.
00:09:08If it doesn't affect the market, why have the rule at all? But we can let them answer that.
00:09:18I look forward to hearing them do it, but I want to say quickly, in this case, everybody now
00:09:24acknowledges the greenhouse gas standards persist into the future indefinitely. Nothing changes from
00:09:29now to the end of time. Absent a rule, they can come in and say, the market is exceeding our standards
00:09:36right now. You can't show that any automaker will do anything. There's a 60-day time bar in the
00:09:40statute. If we can't sue when we sued, we're out of luck forever. The advantage of our rule is that
00:09:45it matches up with the injury perfectly, and it makes sure that in the future, if the price of
00:09:49electricity goes up or the availability of rare earth minerals for batteries changes, we can affect
00:09:54the market. Let's assume that they had affidavits from every single car manufacturer. This is like
00:10:01Chamber of Commerce versus EPA. Every car manufacturer, every single one of them, says,
00:10:10can't change it, won't change it. Do you still win? Can't change it, won't change it. You're the fuel
00:10:17people, but it's not going to affect you because they're going to follow it no matter what.
00:10:22Yes, we do. The evidence here is actually the contrary. Page 99, 211, but I take the point.
00:10:27Yes, because the question isn't what are automakers doing today when we get locked out of the market.
00:10:32It's, yes, we have a pocketbook injury, we believe, but we have an injury that occurs even
00:10:37earlier than that. We are denied the ability to go out and compete in the marketplace to convince
00:10:41automakers that they shouldn't be making as many electric vehicles. They should be making more
00:10:46vehicles that run on liquid fuel, and the government has foreclosed us from doing that,
00:10:49and it's no different than the examples we give in our brief. What if, in Justice Sotomayor's example,
00:10:54the manufacturers stand with, you know, the California regulators and with EPA on the very
00:11:00first day the regulation is rolled out and say, we support this, you know, we want a greener earth,
00:11:05we want to prevent climate change, and this is going to be cheaper for our business anyway. So
00:11:09there's no question of a time lag. You know, they're just fully on board. And so kind of as Justice
00:11:14Sotomayor's hypothetical is saying, but I want to imagine it happens on day one. Why should you have
00:11:20standing and redressability at that point? Because it seems to me, Justice Barrett,
00:11:24let's assume just for a moment that it's unlawful, but that the entire industry buys in,
00:11:29they cut a deal with California, they accept the standards, they want to abide by them,
00:11:33and they all agree and they want to lock in the demand and force consumers that way because they
00:11:38think it'll be profitable for the automaking industry. We still are harmed in a direct way.
00:11:44The government has tilted the playing field and foreclosed us from being able to freely sell
00:11:49our product. And we ought to be able to make our arguments on the merits and get our day in court,
00:11:53regardless of whether the directly regulated industry cuts a deal or not. We have an injury.
00:11:58We have been locked out of a marketplace that injures us financially. It's caused by the regulation.
00:12:04I don't take anybody to be disputing that. So the only question is redressability. And that should
00:12:08be easy in a case like this one. If everybody grants that the regulation is causing your injury,
00:12:13vacating the regulation or California standards that they're allowed to adopt redresses the injury.
00:12:19Well, in light of all that, why do you think you need a special rule? Why isn't
00:12:26in the situation that's present here and in others like it, there's a strong inference that this is
00:12:31likely to have an effect. Now, maybe there could be situations in which by the submission of
00:12:38affidavits like the ones that have been discussed or statements by all the car makers. It could be
00:12:43shown that no, contrary to what one would normally think, this is not going to have any effect. In
00:12:48which case, you might lose on standing. But I'm not sure why you think you need a special rule in this
00:12:54situation. Just to leave, I don't want to fight it too hard. If the court says, look, you had far more
00:12:59here than we had before us in the Department of Commerce, you can have a common sense inference. It's
00:13:04predictable under Department of Commerce. There are many situations in which standing
00:13:10depends on a probabilistic inquiry. And those are very fact-specific. So, you know, you would ask,
00:13:18what is the probability in a particular situation? When someone says, I'm threatened with,
00:13:24you know, I expect that this will harm me, we assess the degree of the risk.
00:13:31So, I'll say two things, Justice Alito. First, what I'm worried about is that we've been ping-ponged
00:13:37around for going on 15 years trying to get a determination on the merits. And if we get sent
00:13:42back for a predictable effects analysis or all the rest in this and future cases, I worry about where
00:13:47we end up. But second, and more logically, doctrinally, in the competitor standing cases,
00:13:53the court doesn't say, well, if we leveled the playing field, would the customers that you seek to
00:13:58compete for fairly come to you rather than the other guy. And I think that's the wrong,
00:14:04I think that would be the wrong way to look at those cases. Your injury isn't just what happens
00:14:09in the marketplace when you are allowed to compete and you think some dollars are taken out of your
00:14:12pocket. You don't really know because the point is you've been locked out in the marketplace.
00:14:16And that's why I think the rule is important. I think it's the same logic here as in the competitor
00:14:21standing cases. And it's not like the court doesn't do that in other areas. California is here saying,
00:14:26if we are prevented from enforcing our standards, and this court said it many times, that is injury,
00:14:33indeed, irreparable injury to the state. Without knowing what it will do under the statutes,
00:14:37whether it will work, whether we'll get a penalty or a conviction, the court often says,
00:14:41if the sovereign doesn't get to enforce its statute, that is injury and the state's got
00:14:46standing to come in regardless. I would think that you would have injury, in fact, under our cases,
00:14:51is if the effect of this is to cause your clients to be unable to sell one car. Wouldn't that be
00:14:59correct? We sell one gallon of liquid fuel. I'm sorry, one gallon of liquid fuel. Yes,
00:15:04that's true. So that doesn't seem like very much to have to show. Justice Alito, I agree,
00:15:11but that's what makes the case so odd. The Court of Appeals said, all right, we're not going to contest
00:15:17that there's injury, in fact, and causation. We're not going to say there is, but we're not going to
00:15:21say there isn't. We're going to assume that you've got injury, in fact, that you sell one gallon less
00:15:26of gasoline. And we're going to assume it's caused by the regulation. But we think you haven't shown
00:15:31redressability. But I think that the reason for that was a combination of two things. One was what
00:15:36Justice Sotomayor said, that they were mistaken about the end date of the regulation. The other,
00:15:44you know, honestly, was that you didn't put on much evidence. You know, and here too,
00:15:50you're sort of common sense inference. It is a common sense inference. But if it's such a common
00:15:55sense inference, it should be easy to put on evidence. And here there wasn't a lot of it.
00:16:01So, Justice Kagan, I don't think that's fair. We had an on point decision from the D.C.
00:16:06Circuit dealing with this very industry, fuel producers. We had our own declarations. We had
00:16:11California's expert declarations filed after we brought this case. So when California intervened,
00:16:16if you look at pages 110 and 115 of the J.A., California put in declarations from two CARB experts.
00:16:22And in both of them, their own experts, these are not statements in a brief.
00:16:26I agree with you. I think it would be easy to read those declarations back to California and say,
00:16:31what do you make of those? But your side didn't really make that argument.
00:16:36Well, we pointed to our declarations. We pointed to California's statement in 2021
00:16:41at page 66 of the J.A. saying these standards are critical, their word, to reducing fuel consumption.
00:16:47We pointed to EPA's statements in adopting the waiver saying they need their own standards.
00:16:51We pointed to the intervener automaker's admission saying, hey, we've invested a lot in electrification.
00:16:57If you don't make them meet the same standard, we might be at a, quote, competitive disadvantage.
00:17:01And I guess my point back, Justice Gigan, is, look. I think my point to you is surely if that's all in the record,
00:17:08you deserve to go forward. Oh, I agree. I agree. So then why do we need the rule?
00:17:13Why do we need a bright line rule if you satisfy the regular evidence standard? First, because I think
00:17:20it's logically the correct inquiry. It's not what happens in the market. It is, as Justice Kavanaugh said
00:17:25in Energy Future Coalition, your inability to get into the marketplace in the first instance. That's a key part of the injury.
00:17:31And not adopting the rule misses that part. But I thought the point of the rule was that you
00:17:35didn't want to have to provide the evidence. That you say, yes, we have the evidence, but we don't
00:17:42need it because under this rule that I'd like for you to adopt, we have redressability. I don't think
00:17:48that evidence is relevant for the same reason it's not in competitor standing cases. But if the court
00:17:52disagrees on our rule, I agree we should win on a standard Department of Commerce. What is the likely
00:17:58effect here? And we put in far more evidence than you would typically see in a case like this.
00:18:03And with all respect to the court below, we got dinged, and not because we didn't do enough,
00:18:07any lawyer looking at what we had done at the time would have said we had redressability.
00:18:11We got dinged in fairness because the court below moved the goalposts. We had Energy Future Coalition
00:18:16and plenty of evidence to satisfy it. And the court below, without citing it-
00:18:18That is really unfair, Mr. Wall. They were under a mistaken understanding, partly because of the
00:18:27submissions in this case, where you were just complaining in your papers about this rule being
00:18:34in effect only till 2025.
00:18:36So, Justice Sotomayor, that is part of the mistake that the Court of Appeals made, but its error was more
00:18:42fundamental. When it looked at standing, it should have said, we have Energy Future Coalition. It
00:18:48tells us that we have redressability in the same industry, fuel producers, if the regulation locks
00:18:53them out of the marketplace. It didn't say that. It turned to the evidence. And then rather than on
00:18:58the evidence saying, well, this is more than enough to satisfy cases like Department of Commerce or Alliance
00:19:03of Hippocratic Medicine, it's not enough here. And what that really amounts to at the end of the day
00:19:10is we couldn't get an affidavit from an automaker who didn't intervene. They sat on the sidelines.
00:19:16They didn't want to participate. And because we couldn't get them to stick their hand up,
00:19:20we couldn't- we didn't have someone saying, here is how I will change my fleet absent the waiver.
00:19:25And that's what we didn't have. And if that's what it's really going to take for an indirectly
00:19:29regulated party to get into court, it's going to be far more difficult to challenge governmental action.
00:19:33And these cases are going to become more expensive and frankly arbitrary, because it will turn
00:19:38on whether the directly regulated industry likes the rule or they don't. And as far as my clients
00:19:43are concerned, that shouldn't matter one whit.
00:19:48Why will you be ping-ponged around? You know, you want the categorical rule. Imagine that I am not
00:19:55sympathetic to the categorical rule, but think that your clients could demonstrate standing based on
00:20:01the common sense inferences. You said that you've been ping-ponged around for 15 years, and so that's why
00:20:07you want the categorical rule. But if we just said you had standing, how can you be ping-ponged around?
00:20:11Oh, if this court declares that there's a common sense inference and applies Department of Commerce
00:20:16and says they met it here, you're right. We should be able then to get a determination on the merits.
00:20:20And as I say, I think the rule is right. But on either of those views, as long as the court says
00:20:25what we say about Department of Commerce, you are right. We would be able to get a determination on
00:20:29the merits, which we've been trying to do for a very long time.
00:20:31So why do you care? On that view of the world, why would you care other than you want to go for
00:20:37the big win as between them? The win is the same either way. I think the rule is right. I think it
00:20:44squares with the competitors' standing cases, and I think the logic of it is right. The injury here is
00:20:49not just what happens out there in the marketplace. We are prevented from getting in at all. And my
00:20:54concern, Justice Barrett, is that if you don't adopt the rule, it will always be an argument about what
00:20:58will happen in the marketplace. And that's very difficult to show once you have a governmental
00:21:02mandate, because the governmental regulation is skewing the entire market. And so as here,
00:21:07even though in the real world everyone knows that California standards have affected automakers,
00:21:12we have a whole debate now about whether, in fact, as a matter of common sense,
00:21:16they actually affected people. And even if they were affecting them in 2019, well, did things change
00:21:22in 2020 and 2021 in a way that by the time you sued in 2022, you might have had standing before,
00:21:28but now you no longer do. Yes, I think we're right about that debate, but I don't think we should
00:21:32have to have it in every case. Can I understand the rule better? Because I had appreciated from your
00:21:39briefs that you had different theories. So I'm just trying to appreciate what's happening. Are you
00:21:46advocating for the direct regulatory impediment species of this? Is that the rule that you're now
00:21:53articulating and it has something to do with being completely locked out of the market?
00:21:57That's our frontline rule. If the government locks you out of a marketplace or tilts it against you,
00:22:03and you come in to sue to have the playing field leveled, you have standing. That's our frontline rule.
00:22:07And then obviously our second line... But you see how that's a little bit different than saying
00:22:12if there's a direct regulatory impediment? That's different than saying you have to be completely
00:22:17locked out of the market. Well, by direct regulatory impediment, I mean sort of a lockout or as here,
00:22:24a cap, right? It's not that we can't sell any fuel at all. It's that we can only sell so much fuel in
00:22:30California and the other 17 states that have adopted these standards because the automakers have to make
00:22:35a certain number of cars that don't run on the product we made. Where does that end? I mean, I guess I'm
00:22:40trying to figure out. I appreciate your argument that the regulation is on the automakers. And as a
00:22:48result of it being on the automakers, the fuel producers are going to make less fuel. But what
00:22:56about the convenience store operators who are also part of this? They say there are fewer people stopping
00:23:02into the convenience store as a result. Are they in your rule or not? I think that they come much closer
00:23:08to the Department of Commerce. But of course, all I need is some petitioner. No, but I'm just trying
00:23:12to understand how your rule works. So this splits your petitioner, your plaintiff's class here because
00:23:18convenience store operators are in. They're not completely in your class. They're not completely
00:23:23locked out of the market. So your direct regulatory impediment rule doesn't have them. That's right.
00:23:28It's just like competitors standing, right? You can harm, you're harmed because they under-regulate a
00:23:32competitor. That regulation can harm lots of other people, people who supply your inputs and all the rest.
00:23:37You have competitor standing. Everybody else has to satisfy predictable facts, Department of
00:23:42Commerce worth. But the way you, when you answered Justice Jackson, you said your rule is if the
00:23:48government tilts the market against you. And here that seems like an easy thing to show and not one
00:23:54that would cause a lot of debate. But in many other cases, did the government tilt the market against
00:24:00you? Did it not? How much? That would be a hard thing to show. And why shouldn't we just stick with
00:24:07a rule that says we're going to look in each case as to the facts and the evidence and then we're going
00:24:13to apply reasonable inferences and we're going to reach a decision rather than try to stick everybody.
00:24:20Do you fit the categorical rule or do you not fit the categorical rule? Justice Kagan, two things.
00:24:25First, it hasn't been a problem on the competitor's standing side and it's not a problem here. We drew
00:24:28a very narrow rule. We took the language of the D.C. Circuit that it lived with for quite a while.
00:24:32See, I think that the question, are you a competitor, seems a lot easier to answer in a lot more cases
00:24:39than the question, has the government tilted the market against you? But there are a thousand people
00:24:44in every regulation who can come in and say, this regulation tilted the market against me.
00:24:50I take the point that that language was a shorthand for what we're saying in our brief,
00:24:54which is the language of the D.C. Circuit, a direct regulatory impediment. And as we explained,
00:24:59what we meant by that and what the D.C. Circuit meant is, are you preventing someone from selling or
00:25:04placing into a market? If it is a direct regulatory impediment, you could sell yesterday, but you can't
00:25:10sell today, you qualify for the rule. So I think it's quite a narrow rule. And the second thing is, why do
00:25:15it? It's the answer I gave to Justice Barrett, because otherwise we're going to have to have this debate
00:25:19in every case. And yes, I think I win as a matter of common sense, but three judges of the D.C. Circuit,
00:25:25as it turned out, disagreed with me. And it seems to me we shouldn't have that debate in every case.
00:25:30Thank you, Counsel. Justice Thomas, anything further? Justice Kingman?
00:25:35Mr. Swarton, Mr. Kavanaugh?
00:25:40I'm not sure there's a huge amount of difference between the rule and the backup position. I mean,
00:25:46the rule's based on a common sense, the common sense predictable effects in a particular context. But
00:25:53either way you go, you get to the same destination. I guess I'm not seeing a huge gap.
00:25:58I agree, Justice Kavanaugh, we should win no matter what the Court says. But,
00:26:03you know, I do think that a case like this, it's not that there should be daylight in the right
00:26:13outcomes. It's that once we make it about evidence, right, we're going to have to come in every case,
00:26:19and there's going to be a debate. Like, well, what do you have to show to trigger a common sense
00:26:22inference? And how common is that common sense? Here- Well, what we said last year in FDA versus
00:26:29Alliance for Hippocratic Medicine, just summarizing the standing law should be,
00:26:34kind of gets at it, doesn't it? I would have thought so too, Justice Kavanaugh,
00:26:38but here we are. But look, I'll be the first to grant that if you take that paragraph in Alliance
00:26:42for Hippocratic Medicine, and you say, look, even if we're not going to call it a rule,
00:26:46there are certain categories where we've said the effects seem awfully predictable,
00:26:49and this falls into one of the categories. That starts to look pretty much like a rule to me,
00:26:54but I'll grant that if that's language that the Court thinks squares more comfortably with,
00:26:58its standing precedents in general, it gets us to the- it should get us to the same place.
00:27:03Thank you. Justice Gorsuch? I'm sorry. Justice Jackson?
00:27:08Yeah, so what about corn and soybean growers? Are they in or out?
00:27:14They're in. They- They're in?
00:27:16Yes, they make liquid fuel, various kinds of liquid fuel, ethanol and all the rest,
00:27:20and this rule says, nope, can't go try to convince the automakers to use your fuel.
00:27:25They have to make a certain- So, I mean, what about the ones that aren't quite the fuel producers,
00:27:30but they're earlier in the chain? I mean, it sounds to me like your rule is conferring standing on
00:27:35anyone in the chain of production in a product that gets affected as a result of government regulation.
00:27:42I don't mean to reach down the road to all the inputs and suppliers-
00:27:45But how do you stop reaching down the road?
00:27:46Are you the producer? We make and sell liquid fuel, and the government says,
00:27:51you could sell to them yesterday, but you can only sell a certain amount today.
00:27:54That is a direct restriction on the product we make and sell,
00:27:58that we, by any account, ought to have standing.
00:28:03Thank you, counsel.
00:28:08Mr. Neidler?
00:28:08Mr. Chief Justice, may it please the court.
00:28:13Petitioners contend that there should be a categorical rule establishing redressability
00:28:19whenever the plaintiff challenges government action that poses an impediment to the use of its product,
00:28:25without any need for an evidentiary basis for that categorical rule or prediction.
00:28:31That proposal is inconsistent with this court's decisions, which require a factual basis for standing.
00:28:37My friend refers to the Department of Commerce and the idea of a predictable or common sense outcome.
00:28:47In the Department of Commerce, there was an evidentiary record.
00:28:50There was evidence submitted.
00:28:51There were factual findings that undergirded the prediction or the result in the Department of Commerce,
00:28:59where the court could then conclude that people who were answering a survey about,
00:29:04or asked to answer a census about their citizenship, would be deterred from doing it.
00:29:10It wasn't just a common sense.
00:29:13And that runs throughout this court's standing law, and it's especially important here,
00:29:19because this court has indeed said that if the plaintiff is the subject of the regulation,
00:29:26it may be easy to prove, but when the plaintiff is not, the court has said repeatedly,
00:29:31it's more difficult to establish standing because whether your injury is caused by or will be redressed by
00:29:41the court's decision depends on decisions by third parties, which may or may not be true.
00:29:48And you need evidence to support a conclusion that that would be true.
00:29:53I welcome the court's questions.
00:29:54Mr. Needler, wasn't the goal of the California regulations to reduce the use of petitioners' fuel?
00:30:05Certainly in 2013, when it was adopted, and I think this is an important point,
00:30:10in 2013, where the fuel producers were already selling in the market,
00:30:17it would have been, I think, quite easy to show that their injury derived from this new regulation.
00:30:24It was caused by that regulation, and it would be redressed by lifting it.
00:30:29It's now 10 years later, though, that manufacturers and no one else challenged the waiver in 2013.
00:30:37In the meantime, there has been 10 years of practical experience in which manufacturers have adjusted
00:30:44and quite without regard or without resting upon the California rule.
00:30:50But when EPA reinstated the rule in 2022, was it intended to do nothing at all?
00:30:55No, not at all.
00:30:56And I think on that point, I think it's important to understand the legal rationale or the legal
00:31:03analysis that EPA brought to bear. And this is something on which there has been changes from
00:31:09one administration to the next, and that's under review. But a waiver in the approach that EPA was
00:31:18taking is for the entire California program, not just these two particular standards. So a waiver is for
00:31:27the entire program. And if the entire program is necessary to address compelling and extraordinary
00:31:33circumstances, that's sufficient. But another important point is that...
00:31:39In 2022, didn't the EPA, in fact, in its submissions to the courts say that the effect of the reinstatement
00:31:47was going to be to reduce gasoline emissions?
00:31:50They said that in 2021. Based, frankly, I think on 2019 projections, a lot happened in the,
00:32:00especially in the zero emission vehicle market.
00:32:02So we shouldn't take the EPA's own representation seriously?
00:32:06Oh, it's California.
00:32:07I think both, EPA and California, made those representations in its papers.
00:32:13Well, yes, but was that sufficient to... The evidence, as you said, is pretty thin.
00:32:22And it's also important to recognize what the...
00:32:25If it was so thin, I don't think that you had a grounds to reinstate the waiver.
00:32:29Well...
00:32:30And if, you know, if it's so thin, why did you say what you say in your briefs? And why did
00:32:34California say what it said in its briefs? Because both parties, I think, said in their briefs,
00:32:40Yes, this is going to reduce gasoline emissions.
00:32:45Well, what EPA did in... The reason, the principal reason that it did what it did in 2022
00:32:52was because it concluded that the withdrawal of the previous waiver was unlawful. It was correcting
00:32:59an error before. It was not a new waiver. What EPA did was conclude that what it had done in 2019
00:33:07was unlawful for a variety of reasons. It rested on an erroneous interpretation of the statute,
00:33:13the one that I was just mentioning to you about, do you look at the whole program or do you look at
00:33:18particular standards? So they were going back without making a brand new assessment. And that's
00:33:26why I think it's important to recognize that between 2013... There's no doubt that in 2013,
00:33:32that fuel producers were injured and that that would have been redressed by rescinding the rule.
00:33:39But that's not the case now because the manufacturers have adjusted and the market now reflects the fact
00:33:47that they are... That there's no particular reason to assume, or at least there is objective evidence
00:33:54contradicting the proposition that the manufacturers would change their behavior in a material way.
00:33:59The California interveners said that California's regulation would mitigate competitive disadvantage
00:34:09by ensuring, quote, a level playing field, close quote, for manufacturers who wanted to produce more
00:34:15fuel efficient vehicles. I just don't see how that statement alone doesn't destroy everything you're
00:34:23arguing. Meaning if it what it's doing is mitigating a competitive level or or supporting a competitive
00:34:33system, isn't that a negative effect on them? Let me make one other point because I think it's
00:34:40responsive to that. And that is that the DC circuit was relying on both trap and the local rule, rule 28,
00:34:49that addresses how standing an assertion of standing should be raised on a direct petition for review.
00:34:56It has to be raised in the petition, excuse me, in the opening brief with any supporting
00:35:03materials. The only thing that was that was submitted here were the 14 declarations that in a
00:35:10conclusory manner said that their injuries would be, the petition is here, their injuries would be
00:35:18ameliorated. But now we have a full record. Let's address Mr. Wall's concern, which is if we reverse for the DC
00:35:31circuit to look at this again, vacate and remand only, correcting their 2025 ending date, misperception.
00:35:43Are you saying that we should we should not just say they have standing on what we have before us now?
00:35:49No, I think I think if the court is uncertain, it should be we're not uncertain. Well, but what you have
00:35:56here is effectively a summary judgment ruling in favor of of EPA. If if you think that there was that
00:36:04there are disputed issues of fact, going to the question of whether what the effect of the
00:36:11reinstatement was, then just like any other situation, it should go to the trier of fact to
00:36:17determine what the effect would be there should not. Otherwise, you're effectively relying on the
00:36:23categorical rule or or prediction that we think is wrong. We agree that it should be fact based.
00:36:31Sorry to interrupt. In the DC circuit, EPA did not challenge standing. That's correct.
00:36:38And that's unusual in my experience. Why not?
00:36:44The it did not. And it and it I think maybe it should have, I think, particularly in retrospect.
00:36:52But the issues of standing isn't that a tell here? I mean, EPA, as you of course know,
00:36:58routinely raises standing objections when there's even even a hint of a question about it.
00:37:05But but when when later on, after the government filed its brief, that's when California made its
00:37:12standing submission in its later filed brief. And then it should have been incumbent on petitioners to
00:37:20respond to that with something beyond the conclusory affidavits that they did. And and they really
00:37:27didn't come back with anything substantial in their reply brief. And they sought to file a supplemental
00:37:33brief, which the DC circuit rejected. And they haven't sought review of that here. So I but I want to
00:37:41stress that that we agree with the observation by a number of the justices that this should be a factual
00:37:48inquiry. There may be many situations in which it should be easy. And I think that that would cover
00:37:54the category most of the categories that Mr. Wallace is mentioning in a direct regular if you have a
00:38:02directly regulated party that this court has said repeatedly, it's probably going to be pretty easy to
00:38:08establish standing. But when when the redress ability turns on decisions by it by a third party, not before the court,
00:38:17I think it's I think it's not a good idea to establish effectively a categorical or common sense or predictive
00:38:25rule because there are a number of situations in which the court has concluded that the fact that they're independent
00:38:30decision makers defeats standing. So Mr. Needler, is this really about I'm just trying to think back to
00:38:38your conversation with Justice Thomas and Justice Kagan. Is this really about the sort of development
00:38:45of facts on the ground that it sounds to me like what you're saying is that originally back in 2013 when
00:38:53this regulation was initially enacted and everybody knew and said it was to reduce fuel emissions that
00:39:03a lawsuit brought at that moment has injury causation and redress ability, noting that causation and
00:39:11redress ability are actually two different factors with respect to standing. But that, you know, however many
00:39:18years later in 2022, because the auto industry has actually on the ground adjusted to the regulation and
00:39:25no longer has a demand for the fuel products, you might have injury, you might have causation, but I think
00:39:36you're saying you no longer have redress ability in that situation, that this might be one of the rare
00:39:42instances in which these things aren't lining up 10, 12 years later in the same way they would at the
00:39:49beginning. And therefore, a bright line rule that just has us thinking about the initial scenario,
00:39:55like was there injury, was there, is it common sense that is not going to work because what we're really
00:40:01supposed to be thinking about in redress ability land is the facts on the ground and whether or not
00:40:07this changing this regulation is going to make any difference. I think that's exactly right. And this
00:40:13is a situation where redress ability gets separated. And maybe it would be helpful if I illustrated this
00:40:19in another way. If a manufacturer had brought a challenge to this regulation, of course, no manufacturer
00:40:25had done so, the manufacturer would have been required to say, if this waiver is set aside,
00:40:32I will engage in the conduct that the regulation prohibits, which is producing a fleet that doesn't
00:40:39comply with the California measures.
00:40:42At the beginning, we'd be predicting that the manufacturer would be,
00:40:47at the beginning, we'd be predicting the manufacturer would say that, if they were the plaintiff,
00:40:52and we'd be looking at evidence to see if that was going to happen. Here, it's already happened that
00:40:57they've changed their results, right? Right. And there's certainly no evidence,
00:41:04as far as I can see, that there would be an immediate material change in what manufacturers would do,
00:41:11or at least that was the conclusion that the Court of Appeals drew from the record. Maybe down the road,
00:41:18five, ten years ago, or in the future, someday, the manufacturers might decide that they want to
00:41:24change their conduct. But this Court has said, some such someday intentions down the road are not
00:41:31sufficient to establish standing. It's too contingent. It's too speculative. So A4-Sirari, the same thing
00:41:38should be true of the fuel producers, who are not the directly regulated parties, and they should be
00:41:46required to show that the manufacturers would change their behavior here and now, not sometime in
00:41:53the future. So I think that lines up with what this Court has said in Defenders of Wildlife and other
00:42:01cases. And what may seem odd here is, I think, precisely the mismatch that Justice Jackson was
00:42:06referring to. And I don't think the Court should adopt a categorical or new rule or new principles of
00:42:13standing to deal with this particular case, because this is actually the quintessential case in which
00:42:20there should be factual determination, because there is evidence that what one might think about common
00:42:27sense or prediction or the way the market might react is not so in this case. And so there should
00:42:34at least be an opportunity for the government to show that it's not so, and for the Court of Appeals in
00:42:41this case, to determine what does the evidence in the case show.
00:42:50Suppose there were an affidavit by one carmaker saying that
00:42:57if this waiver is rescinded, we will manufacture one additional car. Would that be enough?
00:43:06We absolutely commit ourselves. We will manufacture one more car.
00:43:09I think there are many situations in which, you know, one person saying that would be enough.
00:43:16One of the things, again, that is that is, I think, cautionary in this case is that that begins to
00:43:24look a lot like the probability from some of the Court's other cases, like if one member of the
00:43:32Sierra Club could say surely one member will will be injured and therefore we should have standing.
00:43:39The question here isn't what one manufacturer would do, but do any of the individual plaintiffs
00:43:44benefit from what that one manufacturer will do by producing an additional car? That's why I think
00:43:50the Court ought to think about this in broader terms, whether there will be a material change in the
00:43:55industry. Otherwise, you're allowing the corn farmer or a small liquid fuel producer
00:44:03to have standing because one car might be produced.
00:44:07Thank you, Counsel. Justice Thomas?
00:44:10Well, one more question. By my count, the EPA has now changed its mind on this four times. Am I right?
00:44:20Yes, I think that's right.
00:44:21So what is the probability that there will not be a fifth?
00:44:25Well, it is under the president and an executive order directed EPA to examine
00:44:34measures that might have an effect, and EPA is undertaking that. So I can't say what EPA will
00:44:39decide, but this is one of those that has indeed gone back and forth. But I don't think that should affect
00:44:49the standing analysis, because despite that back and forth, the manufacturers have gone forward with
00:44:55their own plans because of their own sustainability concerns or looking to the future, where they're
00:45:02making investments and they want to stick by that path.
00:45:05Justice Sotomayor?
00:45:08You're not a betting man, are you?
00:45:10Pardon me?
00:45:11You're not a betting man that you don't want to guess that there's going to be a fifth change.
00:45:14I'm respecting the administrative process, I know.
00:45:19Justice Kagan?
00:45:24I mean, just out of curiosity, is there anything you can say about the timing of that process?
00:45:28Not at this point. I think that the general tenor of the executive order was to, you know, do this,
00:45:36you know, expeditiously or with due consideration. But no, I don't have anything specific.
00:45:43Justice Gorsuch, Justice Kavanaugh, Justice Barrett, Justice Jackson. Thank you, counsel.
00:45:58Mr. Kline?
00:46:07Mr. Chief Justice, and may it please the Court. Federal courts don't assume their standing.
00:46:13The presumption runs the other way. The party who brings a case must establish that it, in fact,
00:46:18meets each element of standing. That may be easier or harder, depending on the case. And Petitioner's
00:46:24case had unique problems. EPA first approved this waiver in 2013, and the automakers quickly
00:46:31started working to meet the standards. But this case started in 2022. The technology and market had
00:46:38changed. Petitioners relied on decade-old predictions from the original waiver proceedings, but the only
00:46:45up-to-date evidence showed surging consumer demand for clean cars and automaker sales well above any
00:46:52regulatory requirements. Petitioners failed their burden to establish a non-speculative likelihood
00:46:59that automakers would sell more gas cars and petitioners sell more fuel without the waiver.
00:47:05And there is no basis for inventing categorical rules that would have courts exercise Article 3 power
00:47:11where the elements of standing don't, in fact, exist. I welcome the Court's question.
00:47:16Well, if you're accurate about where the auto manufacturers are now, are you willing to say
00:47:24your rules are unnecessary? Well, Your Honor, we would agree that this set of standards is not
00:47:32having an effect on emissions today. No, I mean, are you willing to say they're unnecessary?
00:47:37They're not necessary for our emissions goals. The statutory meaning of need in Section 209b
00:47:43is very precise. It refers to, as this EPA decision correctly interpreted it, it refers to the need
00:47:51for California to have a separate vehicle emissions program as a whole at all, not the need for each
00:47:57successive individual waiver or standard. And we do have a need for our entire program as a whole.
00:48:04So can you can you say that each element of the automotive industry,
00:48:12our manufacturing industry is satisfied or making or adjusting to your rules?
00:48:19Let's say, for example, can you say that heavy trucking or medium trucking or large RVs are all
00:48:30accepting of your rule and complying with it? Well, I guess I haven't thought about that because this
00:48:37standard affects light duty vehicles, which include pickup trucks, I think, but not the other things
00:48:42that you've mentioned. But as a as a broader question, if the question is about the the broader
00:48:47market as a whole, I think, you know, the court had nothing to do but speculate as to whether some
00:48:56let's just take the trucks and let's take the light trucks. Are you willing to say that without your
00:49:04rules, the light truck industry would continue marketing the mix of vehicles? It's currently
00:49:10marketing or manufacturing. We can't guarantee that. But I can say it was petitioners burden to create a
00:49:18non spec it to establish a non speculative likelihood under this court's precedent. Why would you expect that
00:49:24of them if you're not willing to say your rules are unnecessary at this point or ineffectual?
00:49:30Well, your honor, this court's cases have always put the burden on a plaintiff or the party who invokes
00:49:35federal jurisdiction to support with facts. Now, we did address the only facts they brought,
00:49:41which were facts about the California market with 2012-2013 predictions. But it was not our burden
00:49:49to disprove every possible likelihood, every possible... Mr. Klein, I'm wondering, actually,
00:49:54whether you, in fact, made their case for them. So I'm thinking here of the Vanderspeck declaration,
00:50:01which was submitted in support of your motion to intervene. And here's one of the things it
00:50:06says. There are a couple more. But it says, should EPA's restoration of California's waiver for the
00:50:11state's existing light duty vehicle greenhouse gas emission and ZEV standards be overturned? Should
00:50:18those be overturned? It would result in higher criteria pollutant and greenhouse gas emissions.
00:50:23Doesn't that just sort of make their case? Well... That's out of your own mouth.
00:50:30It was, your honor. And let me place it in context. That declaration was filed within days of the
00:50:34petitions for review. And to support one basis of our intervention, not our independent basis,
00:50:41as a sovereign whose laws would be preempted, to support one basis, the declarations relied on and cited
00:50:48pre-existing analyses, which were themselves based on 2019 DMV data. And it turned out that when the
00:50:56parties had the burden to really address standing before the court could exercise its power on the
00:51:02merits, we presented evidence that that 2019 data was no longer representative of the actual market.
00:51:09The market had dramatically changed. And we did promptly bring that to the court's attention. And
00:51:14petitioners never responded about the condition of the market in 2022. They doubled down on presumptions
00:51:21and assumptions and categorical rules. And they cited... And I want to be clear about this.
00:51:27Mr. Wall cited JA66. And if you look at that page, it addressed the 2013 and 2019 records that EPA had,
00:51:37because by the time the 2022 restoration decision was coming around, our focus and EPA's focus was that
00:51:46the 2019 rescission had been substantively and procedurally wrong because the 2013 record adequately
00:51:55supported the 2013 findings and the 2019 record didn't give a basis to overturn that. And you can see
00:52:04that, for instance, from the full discussion in the appendix to the petition around pages 226 to 227 of the EPA
00:52:12decision, not the executive summary that their brief cite, which shows EPA's focus on the 2013 record
00:52:20and whether that record was deficient as the 2019 rescission decision had found. And that's, of course, on top of
00:52:26of what was really our fundamental argument and EPA's fundamental position, which is longstanding and
00:52:35from administrators throughout the life of this provision, except for this very brief period,
00:52:40which is that the need criterion in Section 209B refers to the need for California to have a separate
00:52:47vehicle emissions program at all with all the standards we've enacted,
00:52:54you know, which it's a program we've had.
00:52:57Since, frankly, before the Clean Air Act was enacted.
00:53:03And I also want to...
00:53:04Mr. Klein, can I ask you a question?
00:53:06What is the burden of proof if you see it here? Just more likely than not?
00:53:11Your cases haven't quite said that, Your Honor. The language you've used is a non-speculative likelihood.
00:53:18And I think the cleanest thing to look at is the non-speculative part. Because if there aren't facts
00:53:24supporting a...
00:53:25So what kind of facts would you have wanted them to introduce? Like affidavits from car manufacturers?
00:53:32They could have, but it certainly didn't need to be that. The D.C. Circuit opinion didn't say that,
00:53:36and we would not say that. Anything in an administrative record which shows how the directly
00:53:42regulated third party is likely to act. There could be additional material...
00:53:48Don't you think the affidavit that Justice Kagan read you or... I mean, I think... I don't think
00:53:54it's speculation or wild speculation if you're relying on common sense inferences. I mean,
00:53:59at some point, if you think that they've carried the burden... I'm not saying that you couldn't
00:54:03poke holes in that. But, you know, at some point, don't you think that California could have tried
00:54:09to poke holes that might take them down? It's just, it's not that high a burden. I guess I'm having a
00:54:14hard time seeing why the affidavits and common sense inferences wouldn't just get them over that
00:54:20mark.
00:54:21Let me compare it to two of this court's cases. Lujan versus National Wildlife Federation and the recent
00:54:27Kearney case on Delaware judicial selection.
00:54:29In the Lujan case, the plaintiffs submitted a declaration which maybe on its face would have
00:54:36seemed sufficient. We recreate in the area of, I think it was Green Mountain, and this mining will
00:54:41occur in the Green Mountain Reserve. But the United States submitted evidence that the Green Mountain
00:54:49Reserve was hundreds of thousands of acres and only a small percentage was subject to the mining.
00:54:54This court held there was no APA standing because once the plaintiff's affidavit was understood with
00:55:03what it actually was and wasn't saying, it was insufficient. Now, in Kearney, more recently,
00:55:09the plaintiff said, if this judicial selection criterion was set aside, then I would apply for any Delaware
00:55:19judicial spot. And the defendants showed evidence that, no, there were several spots that were open
00:55:27recently that where this criterion did not apply and you would have been eligible and you did not
00:55:32submit an application. And again, it showed that what the plaintiff was saying was insufficient. Well,
00:55:39here the plaintiff was saying these 2012 predictions show that we are injured and our evidence and showed
00:55:47no, that's not obvious and there's no reason to think that's correct because the technology had already
00:55:53improved. Maybe thanks to our standards back during the preceding years and years, the market had already
00:55:59developed. Maybe it was our standards that and as well as other things that made auto manufacturers invest in
00:56:05developing that market. But the point is that by 2022, the cake was baked or at least petitioners
00:56:12presented no evidence that there was, that there would be any likelihood of a change if this regulation
00:56:18were struck down. You don't expect the Court of Appeals to have a trial when there's affidavits that go
00:56:27both ways, do you? No, Your Honor, we, we think that would. So how does the Court of Appeals then evaluate
00:56:34the affidavits? Well, I think, doesn't it have to use some kind of common sense understanding of how
00:56:39markets work, if it's not going to have witnesses and what have you? Your Honor, I think the Court,
00:56:44as the United States brief said, courts are quite accustomed to making decisions about whether the
00:56:52particular inferences from some evidence has a gap, not a credibility question. This wasn't, is our expert
00:56:58smarter than their expert. This was a fundamental gap in the reasoning, which made them not having,
00:57:05which left them nothing but speculation. And, um, and so I think that, now again, this, this situation
00:57:12will, will not arise that frequently. I mean, this is a kind of unheard of nine-year gap. And in fact,
00:57:19petitioners have pending challenges to newer waiver that, um, they raise many of the same issues, I assume,
00:57:26and, uh, and for those there will be article three standing because for those the newer waiver is for
00:57:34standards that will require automakers to change what they're doing so that the, uh, the unregulated
00:57:40party, the fuel, uh, sellers will change how much fuel they sell. But that was not the case here.
00:57:47So is your answer to, oh, I'm sorry, go ahead. Go ahead. Go ahead.
00:57:49Your answer to justice Kavanaugh, that, um, common sense does play a role when evidence is being
00:57:56presented on both sides. But what you hear the other side to be saying is we should substitute
00:58:01where there, there doesn't need to be evidence. They're saying, um, we can just draw these common
00:58:06sense inferences as a general matter. I think that's basically right, your honor that, I mean,
00:58:12our point is the inferences have to be based on evidence that permits the inference. That's,
00:58:19you know, in Department of Commerce, there was no prediction just from the air from this court's or
00:58:25the district court's, uh, field. Right. So that's you, that's your argument to the bright line rule.
00:58:29Mr. Wall says, ah, but we did have evidence and he points to these declarations. And you're saying,
00:58:35in your view, those declarations were insufficient because they were based on old or outdated information.
00:58:41Well, petitioners' declarations on, as to remedy, were entirely speculative and, uh, sorry, not
00:58:47speculative, conclusory, right? They just said, this would be redressed if you strike down the law.
00:58:51I, I want to make sure the court understands the one piece, uh, of evidence that we haven't talked
00:58:56about, which is Minnesota. Um, the, the petitioners do not appear to contest the United States point at,
00:59:03I think it's page 38 of their brief, that the Minnesota report that was buried in one of the 14
00:59:10declarations and not cited in the court of appeal did not actually say that there would be any,
00:59:15that automakers would have to change what they were doing in response to the standard.
00:59:19That just, uh, compared what if automakers do the bare minimum that's required under the federal
00:59:25standard versus what if they do the bare minimum that would be required under the state standard
00:59:29and did not address what's really the question in this case, which is how can there be an injury
00:59:35that's redressable if automakers for their own reasons and their own motives are doing more
00:59:39than either set of regulatory requirements?
00:59:46Thank you, counsel. Uh, this is Thomas. This is Alito.
00:59:50Well, just so I have it, uh, fresh in mind, could you go back to the very first question that
00:59:56Justice Thomas asked you? Why do you need the waiver at this point?
01:00:00Right. Right. Your Honor, we, this waiver makes no difference right now to California's emissions,
01:00:08uh, control. Uh, so as to this particular waiver, if we were applying for it now, uh, I, well,
01:00:18I don't think we would apply for it now because that's why we superseded this with a new waiver
01:00:22that will require automakers to make a change. We achieved our goals faster and to a larger extent
01:00:28than we'd expected, but there's just no sign anything would change now if the waiver were
01:00:33struck down. So you're, do I understand your answer to say you don't need this waiver?
01:00:41Your Honor, no, I mean, we don't need the waiver for emissions control. Uh,
01:00:48we can, we are glad that the 2019 rescission was struck down because of its erroneous
01:00:52substantive and procedural rulings, but this waiver is not making a difference on the ground now.
01:00:58Thank you. Yes. So there escape.
01:01:05Just Jackson. Thank you. Council.
01:01:10Rebuttal. Mr. Wall.
01:01:13Just a few points, Your Honor. The first, Mr. Needler says, look, who knows what will happen in
01:01:18the market five, 10 years down the road. Just so that's why the court should adopt our frontline rule.
01:01:25We should be allowed to compete in this marketplace because we don't know exactly what will happen down
01:01:30the road. But let's say that the court isn't persuaded by the frontline rule. I think you're
01:01:34right, Justice Kavanaugh. As long as the court repeats the language of Alliance for Hippocratic
01:01:38Medicine, says there are certain categories in which there are predictable effects, and says this case is
01:01:44one of them because it's in the upstream or downstream category. I think that comes very close to being
01:01:50the same thing. Why is this case one of them? Justice Alito, you're right. All we have to show is that one
01:01:56EV would make one fewer electric vehicle in any of 18 states. It's not just California. Mr. Client's looking
01:02:04only at California. There are 18 states here that 17 others that have adopted California standards. So what was the
01:02:12record on that? We had California's statement in 2021 that's at JA 66 saying this is critical to reduce emissions.
01:02:19Then you have the EPA when it regrants the waiver saying in 2022 California needs these standards. That's at pages 154 and 155 and footnote 180 of the petition
01:02:30appendix. Also pages 64, 65, 180 and 202. Says it again and again. Now I take Mr. Needler's point, the EPA did speak out of both sides of his mouth. It said on the one hand, we're not going to really go back and look at whether they need the standards. We're just looking at whether we messed up a few years ago. But they also say we've looked at the whole record in California needs of the standards. I don't know exactly how to square those statements, but either they abdicated their statutory responsibility, or they said California does in fact need the standards. And then in 2022, the two CARB
01:03:00declarations come in. I think the Sheely statement at page 115 of the JA is as good or better than the Vanderspeck statement. California itself saying we need the waiver because otherwise we get fewer electric vehicles and more gasoline powered vehicles. Now, I thought that the one thing they would not clearly say, and I can't tell whether California is just saying it doesn't need the waiver now, or that was also true back in 2022. But I didn't think that either of the, either the United States or California would say,
01:03:30if we had not gotten the waiver in 2022, no automaker would have done anything from that day forward to the end of time. Because I thought it was something that couldn't credibly be said by anybody to the case. Because whatever would happen in California, there are lots of other states out there that are not close to the same numbers on EV penetration as California. California seemed to hedge on that, Justice Thomas, but wherever California is on that, I don't think it's right. And the one thing is
01:04:00Mr. Neidler didn't go near it. And I am a betting man, Justice Sotomayor. And I bet my bottom dollar that the reason he didn't is that in some number of months, the EPA will withdraw the waiver and will say, this waiver has been having an effect from the time it was reinstated. And it is compelling automakers to make more EVs than would otherwise be produced in response to consumer demand. If the EPA says that in a number of months, it will be right.
01:04:25The last thing is, I would say the court shouldn't just vacate and remand. That does pose the risk that we get ping ponged, because it doesn't correct the Court of Appeals legal errors. Even if it tells them that the standards last forever, it doesn't do anything on our frontline rule and it doesn't do anything to correct their misunderstanding of how the predictable effects test works.
01:04:44It is important for standing purposes, not just for us, but as our amici explained, for lots of challengers in lots of different settings. It is important that the court correct the Court of Appeals legal errors so that we can get our day in court and finally have an opportunity to make our case for why EPA and California have wrongly interpreted the Clean Air Act. Thank you.
01:05:04Thank you, counsel. The case is submitted.
01:05:16Saturday, watch the White House Correspondents Association Dinner, live on C-SPAN from the Washington Hilton Hotel.
01:05:26First, join us online for exclusive.