State of Ohio v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2023 Decided April 9, 2024
No. 22-1081
STATE OF OHIO, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S.
REGAN, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE
U.S. ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
ADVANCED ENERGY UNITED, ET AL.,
INTERVENORS
Consolidated with 22-1083, 22-1084, 22-1085
On Petitions for Review of a Final Action
of the Environmental Protection Agency
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.

-- 1 of 48 --

2
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.

-- 2 of 48 --

3
Lavene, Assistant Attorney General, Gentner Drummond,
Attorney General, Office of the Attorney General for the State
of Oklahoma, Bryan Cleveland, Deputy Solicitor General, Ken
Paxton, Attorney General, Office of the Attorney General for
the State of Texas, Judd E. Stone II, Solicitor General, Ryan S.
Baasch, Assistant Solicitor General, Katie B. Hobson,
Assistant Attorney General, Alan Wilson, Attorney General,
Office of the Attorney General for the State of South Carolina,
James Emory Smith, Jr., Deputy Solicitor General, Sean Reyes,
Attorney General, Office of the Attorney General for the State
of Utah, Melissa A. Holyoak, Solicitor General, Patrick
Morrisey, Attorney General, Office of the Attorney General for
the State of West Virginia, Lindsay S. See, Solicitor General,
and Michael R. Williams, Senior Deputy Solicitor General.
James A. Barta, Deputy Solicitor General, Office of the
Attorney General for the State of Indiana, Christian B.
Corrigan, Solicitor General, Office of the Attorney General for
the State of Montana, Eric Hamilton, Solicitor General, Office
of the Attorney General for the State of Nebraska, and Mathura
Sridharan, Deputy Solicitor General, Office of the Attorney
General for the State of Ohio, entered appearances.
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

-- 3 of 48 --

4
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

-- 4 of 48 --

5
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 N.
Koschwitz, Assistant Attorney General, Anne E. Lopez,
Attorney General, Office of the Attorney General for the State
of Hawaii, Lyle T. Leonard, Deputy Attorney General, Kwame
Raoul, Attorney General, Office of the Attorney General for
the State of Illinois, Matthew J. Dunn, Chief, Environmental
Enforcement/Asbestos Litigation Division, Elizabeth Dubats,
Assistant Attorney General, Aaron M. Frey, Attorney General,
Office of the Attorney General for the State of Maine, Emma
Akrawi, Assistant Attorney General, Anthony G. Brown,
Attorney General, Office of the Attorney General for the State
of Maryland, Cynthia M. Weisz, Assistant Attorney General,
Joshua M. Segal, Special Assistant Attorney General, Keith
Ellison, Attorney General, Office of the Attorney General for
the State of Minnesota, Peter N. Surdo, Special Assistant
Attorney General, Aaron D. Ford, Attorney General, Office of
the Attorney General for the State of Nevada, Heidi Parry
Stern, Solicitor General, Daniel P. Nubel, Senior Deputy
Attorney General, Matthew J. Platkin, Attorney General,
Office of the Attorney General for the State of New Jersey, Lisa
J. Morelli, Deputy Attorney General, Raul Torrez, Attorney
General, Office of the Attorney General for the State of New
Mexico, Bill Grantham, Assistant Attorney General, Letitia
James, Attorney General, Office of the Attorney General for
the State of New York, Judith N. Vale, Deputy Solicitor
General, Yueh-Ru Chu, Chief, Affirmative Litigation Section,
Environmental Protection Bureau, Gavin G. McCabe,
Assistant Attorney General, Joshua H. Stein, Attorney General,
Office of the Attorney General for the State of North Carolina,
Asher P. Spiller, Special Deputy Attorney General, Ellen F.

-- 5 of 48 --

6
Rosenblum, Attorney General, Office of the Attorney General
for the State of Oregon, Paul Garrahan, Attorney-in-Charge,
Steve Novick, Special Assistant Attorney General, Charity R.
Clark, Attorney General, Office of the Attorney General for the
State of Vermont, Nicholas F. Persampieri, Assistant Attorney
General, Peter F. Neronha, Attorney General, Office of the
Attorney General for the State of Rhode Island, Nicholas M.
Vaz, Special Assistant Attorney General, Robert W. Ferguson,
Attorney General, Office of the Attorney General for the State
of Washington, Christopher H. Reitz, Assistant Attorney
General, Andrea Joy Campbell, Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
Seth Schofield, Senior Appellate Counsel, Matthew Ireland,
Assistant Attorney General, Michelle Henry, Acting Attorney
General, Office of the Attorney General for the
Commonwealth of Pennsylvania, Ann R. Johnston, Senior
Deputy Attorney General, Brian L. Schwalb, Attorney General,
Office of the Attorney General for the District of Columbia,
Caroline S. Van Zile, Solicitor General, Michael J. Bostrom,
and Christopher G. King. Francisco Benzoni, Special Deputy
Attorney General, Office of the Attorney General for the State
of North Carolina, and Michael Fischer, Executive Deputy
General Counsel, entered appearances.
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,

-- 6 of 48 --

7
Elizabeth S. Theodore, Ethan G. Shenkman, Samuel I. Ferenc,
David M. Lehn, Kenneth J. Markowitz, Pratik A. Shah, and
Steven Croley were on the brief for Industry respondent-
intervenors.
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,

-- 7 of 48 --

8
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
1 State Petitioners are the State of Ohio, State of Alabama, State of
Arkansas, State of Georgia, State of Indiana, State of Kansas,
Commonwealth of Kentucky, State of Louisiana, State of
Mississippi, State of Missouri, State of Montana, State of Nebraska,
State of Oklahoma, State of South Carolina, State of Texas, State of
Utah, and State of West Virginia.
2 Fuel Petitioners are American Fuel & Petrochemical
Manufacturers, Clean Fuels Development Coalition, Diamond
Alternative Energy, LLC, Domestic Energy Producers Alliance,
Energy Marketers of America, ICM, Inc., Illinois Corn Growers
Association, Iowa Soybean Association, Kansas Corn Growers
Association, Michigan Corn Growers Association, Minnesota
Soybean Growers Association, Missouri Corn Growers Association,
National Association of Convenience Stores, South Dakota Soybean
Association, and Valero Renewable Fuels Company, LLC.

-- 8 of 48 --

9
U.S.C. § 32919(a). State Petitioners also claim that by granting
a waiver to California alone, the EPA violated a constitutional
requirement that the federal government treat states equally in
terms of their sovereign authority. We hold that Fuel
Petitioners lack standing to raise their statutory claim, and that
State Petitioners lack standing to raise their preemption claim,
because neither set of Petitioners has demonstrated that their
claimed injuries would be redressed by a favorable decision by
this Court. While we hold that State Petitioners have standing
to raise their constitutional claim, we reject it on the merits.
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 42 U.S.C. § 7521,
and it preempts any corresponding state regulation, expressly
preventing the adoption of emissions standards for new
vehicles and/or engines as follows:
(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,

-- 9 of 48 --

10
titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.
Id. § 7543(a) (“Section 209(a)”). However, the Clean Air Act
permits the EPA to waive application of Section 209(a) to any
state under certain circumstances:
(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

-- 10 of 48 --

11
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. § 7543(b) (“Section 209(b)”). California is the only state
that had adopted standards (other than crankcase emission
standards) for the control of emissions from new motor
vehicles or new motor vehicle engines as of March 30, 1966.
See Motor & Equip. Mfrs. Ass’n v. EPA, 627 F.2d 1095, 1100
n.1 (D.C. Cir. 1979).
If California applies to promulgate automobile emissions
standards that it has determined are at least as protective of
public health and welfare as the existing federal regulations,
the Clean Air Act requires the EPA to waive preemption as to
those regulations, unless certain criteria (the “waiver denial
criteria”) are met. 42 U.S.C. § 7543(b). The EPA may refuse
to grant a waiver only if: (1) California’s “determination . . . is
arbitrary and capricious,” (2) California “does not need such
State standards to meet compelling and extraordinary
conditions,” or (3) the “standards and accompanying
enforcement procedures are not consistent with [42 U.S.C.
§ 7521(a)].” Id. § 7543(b)(1)(A)–(C). In other words, the
federal regulations continue to act as the floor for emissions
regulations, but California can seek to enact its own more
stringent regulatory program above those federal requirements.

-- 11 of 48 --

12
Sections 209(a) and (b) of the Clean Air Act together make
up a statutory compromise between several competing
interests. When Congress enacted the Clean Air Act in 1967,
California suffered from significant air quality and pollution
problems caused by motor vehicle emissions, which federal
emissions regulations were unlikely to adequately address. See
S. Rep. No. 90-403, at 33–34 (1967); H.R. Rep. No. 90-728, at
21–23, 96–97 (1967). California was also the only state with
its own motor vehicle emissions standards, and its leadership
in automobile emissions regulation had been valuable to the
federal government in crafting the Clean Air Act. See S. Rep.
No. 90-403, at 33–34; H.R. Rep. No. 90-728, at 21–23, 96–97.
At the same time, automobile manufacturers were growing
concerned that other states might begin regulating automobile
emissions, subjecting them to a patchwork of regulatory
obligations and significantly increasing manufacturing costs.
See H.R. Rep. No. 90-728, at 21; see also Engine Mfrs. Ass’n
v. EPA, 88 F.3d 1075, 1079 (D.C. Cir. 1996). Congress
enacted Sections 209(a) and (b) to balance the fears of
automobile manufacturers, California’s need for bespoke
regulation, and the federal interest in allowing California to test
new emissions regulations. Section 209(a) addresses the fears
of automakers and ensures national uniformity in automobile
emissions standards by preempting state regulation. See 42
U.S.C. § 7543(a). Meanwhile, Section 209(b) grandfathers in
California’s regulatory program and allows it to continue
innovating new solutions to automobile pollution. See id.
§ 7543(b); see also Engine Mfrs. Ass’n, 88 F.3d at 1080.
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

-- 12 of 48 --

13
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 of
California’s regulations argued that Section 209(b) required
California to show that its carbon monoxide standard was
individually more protective than the federal carbon monoxide
standard. In 1977, Congress resolved this dispute by amending
Section 209(b). The new language of Section 209(b) made
explicit that California need only determine that its standards
are, “in the aggregate, at least as protective of public health and
welfare” as the federal standards. 42 U.S.C. § 7543(b)(1). So
long as California has made that determination, the EPA must
grant California a waiver unless the EPA finds that any of the
waiver denial criteria are met. See id. § 7543(b)(1)(A)–(C).
The amendment ensures that California is not required to
determine that each new proposed regulation is more protective
than its federal counterpart. Id. It was intended to give
California the “broadest discretion in selecting the best means
to protect the health of its citizens and the public welfare.”
H.R. Rep. No. 95-294, at 301–02 (1977).3
3 The 1977 Clean Air Act amendments also empowered other states
to choose between adopting the federal standards or the California

-- 13 of 48 --

14
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 42 U.S.C. § 7543(b)(1)(A)–(C). Thus, in
examining whether any of the waiver denial criteria applied,
the EPA considered only whether California’s proposed
standards, in the aggregate, met any of the criteria—not
whether each individual standard could be denied under any of
the criteria. The EPA continued to evaluate California’s waiver
applications under Section 209(b) using this aggregate method
of evaluation for decades. In the fifty-five years since Section
209(b) was originally enacted, the EPA has granted California
seventy-five waivers using the aggregate method of evaluation.
See California State Motor Vehicle Pollution Control
Standards; Advanced Clean Car Program; Reconsideration of
a Previous Withdrawal of a Waiver of Preemption; Notice of
Decision, 87 Fed. Reg. 14337 (Mar. 14, 2022) (“2022 Waiver
Reinstatement Decision”); see also EPA, Vehicle Emissions
California Waivers and Authorizations,
https://perma.cc/5T7U-L8GE (last visited Mar. 27, 2024).
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,
standards. 42 U.S.C. § 7507. As of the date of this opinion,
seventeen states have chosen to adopt some portion of the California
regulations. See Cal. Air Res. Bd., States that Have Adopted
California’s Vehicle Regulations, https://perma.cc/HCS4-X7NP
(last visited Mar. 27, 2024).

-- 14 of 48 --

15
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 challenges. It contains seven
of the ten worst areas for ozone pollution in the country and six
of the ten worst areas for small particulate matter. See 2022
Waiver Reinstatement Decision, 87 Fed. Reg. at 14377 n.469.
It also faces “increasing risks from record-setting fires, heat
waves, storm surges, sea-level rise, water supply shortages and
extreme heat.” Id. at 14363; see also id. at 14338–39 & nn.37,
43. And these conditions are exacerbated by climate change.
Id. at 14350 & n.165. Moreover, pollution and climate change
have particularly harmful impacts on California due to its large
agriculture and ocean-based economies, dependence on an
over-stressed water supply, long coastlines, and susceptibility
to wildfires. See 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, 32746 (July 8,
2009).
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

-- 15 of 48 --

16
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

-- 16 of 48 --

17
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) Vehicles Rule for Model
Years 2021-2026 Passenger Cars and Light Trucks, 83 Fed.
Reg. 42986 (Aug. 24, 2018).
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 49
U.S.C. § 32902(a), (f) (empowering the NHTSA to set federal
fuel economy standards); id. § 32919(a) (preempting state fuel
economy standards). Second, the EPA had decided that it
would no longer follow a “whole program” interpretation of
Section 209(b), and instead would evaluate whether each
individual California standard met the requirement that it be
necessary to “meet compelling and extraordinary conditions.”
2019 Withdrawal Decision, 84 Fed. Reg. at 51341 (quoting 42
U.S.C. § 7543(b)(1)). Third, California could not show that its
LEV and ZEV regulations were necessary to meet compelling
and extraordinary conditions because California could not

-- 17 of 48 --

18
show a “particularized nexus” between greenhouse gas
emissions and California’s air pollution problems. Id.
According to the EPA, because greenhouse gas pollution from
global sources is blended in the atmosphere, the consequences
of climate change from which California suffered were not
“compelling and extraordinary.” Id. at 51333–34.
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

-- 18 of 48 --

19
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 for review of the same EPA
action (22-1083, 22-1084, and 22-1085). The Court
consolidated these cases (22-1081). California and several
other states and cities (collectively, “California”),4
environmental organizations,5 and automobile manufacturers6
have intervened in support of respondents in the consolidated
case.
4 The state and city intervenors are the City of Los Angeles, the City
of New York, Massachusetts, Pennsylvania, the District of
Columbia, California, Colorado, Connecticut, Delaware, Hawaii,
Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New
Mexico, New York, North Carolina, Oregon, Rhode Island,
Vermont, and Washington.
5 The environmental organization intervenors are the Center for
Biological Diversity, the Clean Air Council, the Conservation Law
Foundation, the Environmental Defense Fund, the Environmental
Law and Policy Center, the National Parks Conservation
Association, the Natural Resources Defense Council, the Public
Citizen, the Sierra Club, and the Union of Concerned Scientists.
6 The automobile manufacturer intervenors are Ford Motor
Company, Volkswagen Group of America, Inc., BMW of North
America, LLC, American Honda Motor Co., Inc., Volvo Car USA
LLC, the National Coalition for Advanced Transportation, Advanced
Energy Economy, Calpine Corporation, National Grid USA, the
New York Power Authority, and the Power Companies Climate
Coalition.

-- 19 of 48 --

20
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.

-- 20 of 48 --

21
A “showing of standing is ‘an 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

-- 21 of 48 --

22
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 D.C. Cir. R. 28(a)(7).
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

-- 22 of 48 --

23
for liquid fuels.7 Fuel Petitioners and their members, who
produce and sell liquid fuels and the raw materials used to
produce those fuels, are thereby financially injured by the
reduction in demand for those products. Fuel Pet. Br. 16; Fuel
Pet. Reply Br. 3–4. In support of Fuel Petitioners’ contention
that they are economically injured by the waiver, Fuel
Petitioners offer over a dozen declarations by individuals who
are affiliated with Fuel Petitioner entities and organizations; the
individuals explain that the entity or organization is involved
with producing or selling fuel and that the waiver causes Fuel
Petitioners economic injury by reducing the demand for fuel
and related products.
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
7 Fuel Petitioners include both associations and individual entities.
Fuel Pet. Br. 16. Because, as we explain, we conclude that all Fuel
Petitioners have failed to establish redressability, we need not
address whether any of the Fuel Petitioner associations have
established organizational standing. Cf. Sierra Club, 292 F.3d at 898
(laying out the requirements for establishing organizational
standing).

-- 23 of 48 --

24
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 “decline in the quality of delivered state
services,” a reduction in “fuel tax revenues available for the
provision of highway and road services,” and an “increase in
the costs and prices of delivering electric power services.”
State Pet. Add. 38–39.
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

-- 24 of 48 --

25
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 “by setting aside the action.” Fuel Pet. Br. 16. Fuel
Petitioners’ declarations offer little more; to the extent that Fuel
Petitioners’ declarations discuss redressability at all, the
declarations state that the injuries discussed therein “would be
substantially ameliorated if EPA’s decision were set aside.”
State Petitioners’ opening brief is similarly conclusory
regarding redressability. State Petitioners assert that their
“injuries are redressable because a judgment setting aside the
waiver would eliminate the source of their injuries.” State Pet.
Br. 16. However, none of the declarations submitted by State
Petitioners with their opening brief addresses redressability at
all.
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

-- 25 of 48 --

26
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 “regulatory lead
time (i.e., awareness of future regulatory requirements)” is
seven years. J.A. 637. Ford explained that, as a result, if the
regulatory landscape shifted in some way, “little or nothing
could be done to re-optimize the company’s product plans,
which are largely fixed for the next few years.” Id. Further,
the record indicates that other automobile manufacturers would
also require years of lead time to alter their product plans. In
comments submitted to the EPA during the EPA’s rulemaking
process regarding the 2022 waiver reinstatement, Tesla, Inc.
and Toyota Motor North America, Inc., explained that their

-- 26 of 48 --

27
vehicle product cycles, too, can also begin years before a
vehicle is launched. J.A. 371, 477; see also J.A. 370 n.5
(summarizing similar statements from Chrysler Group LLC,
Hyundai America Technical Center, Inc., and Mitsubishi
Motors North America). Thus, even if automobile
manufacturers were inclined to change course so as to alleviate
the Petitioners’ injuries within the given model years, it is far
from clear that they could do so within the model years covered
by the waiver.8 To be sure, it is possible that manufacturers
could change their prices without modifying their production
cycles, which may redress Petitioners’ injuries because pricing
could affect the mix of conventional and electric vehicles
purchased. But Petitioners point us to no evidence that
manufacturers would change their prices by Model Year 2025
either.
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,
8 We also note that several automobile manufacturers have
intervened in support of the EPA in this case. Those manufacturers
explain in their brief in support of the EPA that “both internal
sustainability goals and external market forces” are prompting
manufacturers to transition toward electric vehicles, irrespective of
California’s regulations. Industry Resp.-Intervenor Br. 6–7.

-- 27 of 48 --

28
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 “greater leeway” afforded to states seeking to protect
quasi-sovereign interests cannot save defective standing claims
when, as here, the record is “almost completely silent” with

-- 28 of 48 --

29
respect to an element of a state’s standing. Alaska v. U.S. Dep’t
of Agric., 17 F.4th 1224, 1230 (D.C. Cir. 2021).
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

-- 29 of 48 --

30
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,
“manufacturers have likely already made pricing decisions for”
the remaining model years. California Add. 96. Cunningham
also states that “manufacturers are already selling more
qualifying vehicles in California than the State’s standards
require,” suggesting that vacatur of the zero-emission vehicle

-- 30 of 48 --

31
mandate would not redress Petitioners’ injuries. California
Add. 98. Indeed, record evidence supports the fact that
manufacturers already exceed California’s ZEV requirements.
See J.A. 300–02. Yet despite these arguments against their
theory of redressability, neither State nor Fuel Petitioners
meaningfully addressed the redressability of their economic
injuries in their reply briefs.9 State Pet. Reply Br. 3, Fuel Pet.
Reply Br. 3–6.
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
9 This Court denied a motion by State Petitioners to file with their
reply brief new evidence regarding their standing. Per Curiam Order,
Aug. 9, 2023. That proposed supplemental evidence, however,
concerned only State Petitioners’ allegations of economic injuries
stemming from the waiver, not the redressability of those injuries.
ECF 2019756. At any rate, the evidence was too late. See D.C. Cir.
R. 28(a)(7).
10 We conclude that Petitioners have failed to introduce sufficient
evidence to raise a dispute of fact as to whether changes to the
remaining model year fleets are substantially likely if vacatur were
to occur, so we have no need to refer this to a district judge or special

-- 31 of 48 --

32
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 “address that
new argument.” Fuel Pet. Mot. to Supp. 1.
We deny Fuel Petitioners’ motion to supplement the
record and to file a supplemental brief. As we have explained,
a petitioner must generally demonstrate standing in its opening
brief, either by “citing any record evidence relevant to its claim
of standing” or, where necessary, by “appending to its filing
additional affidavits or other evidence.” Sierra Club, 292 F.3d
at 900–01. This Court has, on rare occasion, accepted late
affidavits or other evidence in support of standing for “good
master as a disputed factual issue for resolution before making our
ruling on redressability. See FCC v. ITT World Commc’ns, Inc., 466
U.S. 463, 469 (1984) (citing 28 U.S.C. § 2347(b)(3)); Fed. R. App.
R. 48(a).

-- 32 of 48 --

33
cause” shown. Am. Libr. Ass’n v. FCC, 401 F.3d 489, 495–96
(D.C. Cir. 2005) (quoting Sierra Club, 292 F.3d at 900); Nat’l
Council for Adoption v. Blinken, 4 F.4th 106, 112 (D.C. Cir.
2021). We have found “good cause” when, for example, “‘the
parties reasonably, but mistakenly, believed’ that they
‘sufficiently demonstrated standing’ or when they ‘reasonably
assumed that their standing was self-evident.’” Nat’l Council
for Adoption, 4 F.4th at 111 (quoting Twin Rivers Paper Co.
LLC v. SEC, 934 F.3d 607, 614 (D.C. Cir. 2019)).
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.

-- 33 of 48 --

34
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 “contrary to constitutional right” under 5 U.S.C. § 706(2)(B)
because Section 209(b) of the Clean Air Act is
unconstitutional. They rely on the equal sovereignty principle,
which the Supreme Court applied in Shelby County v. Holder,
570 U.S. 529 (2013), to hold that Fifteenth Amendment
legislation that disparately impacts states’ control over voting
procedures must be “sufficiently related to the problem it
targets.” Id. at 542 (quoting Nw. Austin Mun. Util. Dist. No.
One v. Holder, 557 U.S. 193, 203 (2009)). State Petitioners
argue that this principle also categorically prohibits Congress
from using its Commerce Clause power in a way that
withdraws sovereign authority from some states but not others.
And Section 209(b), they say, violates that principle by
preempting the authority of every state but California to
regulate motor vehicle emissions. We conclude that State

-- 34 of 48 --

35
Petitioners have standing to raise this constitutional claim, but
we join the two other circuits to have considered the issue in
rejecting State Petitioners’ request to extend the equal
sovereignty principle in this fashion. See NCAA v. Governor
of New Jersey, 730 F.3d 208, 239 (3d Cir. 2013), abrogated on
other grounds by Murphy v. NCAA, 138 S. Ct. 1461 (2018);
Mayhew v. Burwell, 772 F.3d 80, 95 (1st Cir. 2014).
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 “leveling down” remedy is sufficient to support
standing when a party asserts a constitutional right to equality.
As the Court has put it, “when the ‘right invoked is that to equal
treatment,’ the appropriate remedy is a mandate of equal
treatment, a result that can be accomplished by withdrawal of
benefits from the favored class as well as by extension of

-- 35 of 48 --

36
benefits to the excluded class.” Heckler, 465 U.S. at 740
(quoting Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S.
239, 247 (1931)); see also Sessions v. Morales-Santana, 582
U.S. 47, 72–73 (2017). That principle developed in cases
applying the Fourteenth Amendment’s Equal Protection
Clause. But Respondents have not identified—and we do not
perceive—any material reason to treat the right to equal
sovereignty claimed here any differently for standing
purposes.11 And under the logic of the Equal Protection cases,
holding Section 209(b) unconstitutional and vacating the
waiver would redress the claimed constitutional injury by
leaving all states equally positioned, in that none could regulate
vehicle emissions. Accordingly, unlike with their asserted
economic injuries, State Petitioners’ asserted constitutional
injury can be redressed even absent evidence that
manufacturers will change their plans before the waiver
expires.12
11 Although we find State Petitioners’ claimed dignitary harm
sufficiently analogous in kind for purposes of standing, we do not
suggest that this harm is commensurate with equal protection injuries
based on the perpetuation of “archaic and stereotypic notions” and
stigmatization of members “of [a] disfavored group as ‘innately
inferior.’” Heckler, 465 U.S. at 739 (quoting Miss. Univ. for Women
v. Hogan, 468 U.S. 718, 725 (1982)).
12 State Petitioners’ standing for their constitutional claim under 5
U.S.C. § 706(2)(B) does not revive their statutory preemption claim
under § 706(2)(A). As the Supreme Court has repeatedly held,
standing “is not dispensed in gross; rather, plaintiffs must
demonstrate standing for each claim that they press and for each form
of relief that they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413,
431 (2021); see also, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006); Davis v. Fed. Election Comm’n, 554 U.S. 724, 734
(2008). We are aware of no precedent or rationale that would allow
parties to bring claims over which we otherwise would lack

-- 36 of 48 --

37
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
Voting Rights Act’s (“VRA”) coverage formula, which
required some but not all states to obtain approval from federal
authorities before enacting voting-related laws, a process
known as preclearance. Id. at 536–37. The Court did not
disturb South Carolina v. Katzenbach, 383 U.S. 301 (1966),
which held that the coverage formula in the Voting Rights Act
of 1965 was constitutional because it was “rational in both
practice and theory.” Shelby County, 570 U.S. at 550 (quoting
Katzenbach, 383 U.S. at 330); see also id. at 550–51
(discussing the exceptional circumstances that supported
Katzenbach’s conclusion). Instead, the core question in Shelby
County was whether Congress had sufficient justification for
continuing to subject those states to the preclearance
requirement in its 2006 reauthorization of the Voting Rights
Act. Id. The Supreme Court relied in part on the “fundamental
principle of equal sovereignty,” id. at 544, to hold that the
jurisdiction—such as State Petitioners’ statutory preemption claim—
by appending another claim subject to a different standing analysis.

-- 37 of 48 --

38
VRA’s coverage formula was unconstitutional because it was
founded on “decades-old data and eradicated practices,” id. at
551, instead of being tailored to “current conditions,” id. at 557.
The Court did not outright reject the coverage formula for
treating states differently; instead, it held that the formula’s
“disparate geographic coverage” was not “sufficiently related
to the problem that it targets.” Id. at 550–51 (quoting Nw.
Austin, 557 U.S. at 203).
State Petitioners do not ask us to apply Shelby County’s
test that a statute’s “disparate geographic coverage” must be
“sufficiently related to the problem that it targets.” State Pet.
Reply Br. 13 (“Shelby County never suggested this test applies
in other contexts.”). Indeed, they forfeited any argument that
the waiver here fails Shelby County’s “sufficiently related” test
by raising that argument for the first time in their reply brief.
State Pet. Reply Br. 14–15. Instead, State Petitioners rely on
Shelby County to argue that the equal sovereignty principle
operates as a categorical bar on Congress’s Commerce Clause
authority—that is, that the principle prohibits Congress from
enacting Commerce Clause legislation that leaves some states
with more sovereign authority than others, regardless of
Congress’s reasons for doing so. State Pet. Br. 24–25, 28–29
(“Section 209(b) violates the equal-sovereignty doctrine by
allowing California to exercise sovereign authority that
§ 209(a) takes from every other State.”); State Pet. Reply Br.
10, 12.13
13 State Petitioners half-heartedly suggest that “Congress arguably
complies with the equal-sovereignty doctrine when it empowers only
a single State (or a single subset of States) to regulate a matter of
unique concern to that State (or that subset of States),” such as if
Congress were to allow just one state to regulate a mineral that exists
only in that state. State Pet. Br. 26–27. Such a law would fit with
State Petitioners’ categorical theory because it would not “deny
sovereign authority to any State capable of exercising it.” State Pet.

-- 38 of 48 --

39
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 Fifteenth
Amendment “by appropriate legislation.” 570 U.S. at 536
(quoting U.S. Const. amend. XV). The Court used equal
sovereignty as a background principle in applying that phrase.
Id. at 544–45. State Petitioners confirm that textual link in their
brief to us, arguing that Shelby County means that “in deciding
whether such legislation was ‘appropriate,’ courts must consult
the background principle of equal sovereignty.” State Pet. Br.
24.
But unlike the Fifteenth Amendment, Congress’s
Commerce Clause power is not limited to “appropriate
legislation.” The Commerce Clause instead declares
unconditionally that Congress has the power “to regulate
commerce with foreign nations, among states, and with the
Indian tribes.” U.S. Const. art. I § 8, cl. 3. As the Supreme
Court has explained, the Commerce Clause is “a grant of
plenary authority to Congress,” Hodel v. Va. Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 276 (1981), and
“acknowledges no limitations” other than those “prescribed in
the constitution” and “expressed in plain terms,” Gibbons v.
Ogden, 22 U.S. 1, 196 (1824).
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
Reply Br. 14. As the example indicates, this suggestion is not
substantively different from the theory that the equal sovereignty
principle imposes a categorical limit on Congress’s Commerce
Clause authority, and we therefore do not address it separately.

-- 39 of 48 --

40
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.
Section 209(b) is not “extraordinary” in that way. The
Constitution places regulation of all matters affecting interstate
commerce—including vehicle emissions—squarely within
Congress’s domain, not that of the states. See Miss. Comm’n
on Env’t Quality v. EPA, 790 F.3d 138, 180–83 (D.C. Cir.
2015); see also Massachusetts, 549 U.S. at 528–29. Indeed, in
discussing the Constitution’s assignment to Congress of
control over interstate commerce the Court has stressed that
“[n]o other federal power was so universally assumed to be
necessary” and “no other state power was so readily
relinquished.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S.
525, 534 (1949). Accordingly, no one questions that Congress
could readily preempt all states from regulating motor vehicle
emissions, or that Congress itself could set different vehicle
emissions standards for different regions of the country. See
Sec’y of Agric. v. Cent. Roig Refin. Co., 338 U.S. 604, 616
(1950) (recognizing Congress’s authority to “devise . . . a
national policy with due regard for the varying and fluctuating
interests of different regions”); Hodel v. Indiana, 452 U.S. 314,
332 (1981). Shelby County does not support requiring a
heightened justification for disparate intrusions into areas over
which the Constitution grants Congress such comprehensive
control. As the Third Circuit put it, “there is nothing in Shelby
County to indicate that the equal sovereignty principle is meant

-- 40 of 48 --

41
to apply with the same force outside the context of ‘sensitive
areas of state and local policymaking.’” NCAA, 730 F.3d at
239 (quoting Shelby County, 570 U.S. at 545).
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 “equal
sovereignty” as an “attribute . . . guaranteed to” each state
“upon admission.” United States v. Louisiana, 363 U.S. 1, 16
(1960), supplemented sub nom. United States v. Louisiana, 382
U.S. 288 (1965). For example, Coyle v. Smith, 221 U.S. 559
(1911), held that Congress had no authority to prohibit
Oklahoma from moving its state capital as a condition of
admission into the United States. Id. at 567–68. The Court’s
opinion addressed whether Congress’s power to admit new
states into the Union allowed such a condition, which was

-- 41 of 48 --

42
concededly beyond any of Congress’s other enumerated
powers. Id. The Court explained that Congress could not use
its admission power to require a new state to give up an aspect
of sovereignty that the thirteen original states retained. Id. To
do so, the Court concluded, would create a “union of states
unequal in power, as including states whose powers were
restricted only by the Constitution, with others whose powers
had been further restricted by an act of Congress accepted as a
condition of admission.” Id. at 567. State Petitioners here seize
on that and similar language to support their argument that the
equal sovereignty principle must mean Congress generally has
no power to legislate in ways that leave the states with unequal
sovereign authority.
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 “legislation intended as
a regulation of commerce,” because to do that would be acting
“within the sphere of the plain power of Congress.” 221 U.S.

-- 42 of 48 --

43
at 574; see also id. at 572–74; Pollard v. Hagan, 44 U.S. 212,
229–30 (1845). Such a condition would not put states on an
impermissibly unequal footing because it “would not operate
to restrict the state’s legislative power in respect of any matter
which was not plainly within the regulating power of
Congress.” Coyle, 221 U.S. at 574. Accordingly, the equal
footing cases fit neatly with the conclusion that the equal
sovereignty principle is not a categorical bar on Congress
deploying its plenary power over interstate commerce in ways
that differentially affect states’ legislative power.
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
authority to regulate interstate commerce which the Supreme
Court has held is subject only to those limitations “prescribed
in the constitution” and “expressed in plain terms.” Gibbons,
22 U.S. at 196.
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 Article I,
Section 8 states that laws concerning bankruptcy,
naturalization, and duties shall be “uniform.” See U.S. Const.
art. I, § 8, cl. 1, cl. 4. Similarly, Article I, Section 9 prohibits
“[p]reference . . . given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another.” U.S.
Const. art. I, § 9, cl. 6. State Petitioners argue that these textual

-- 43 of 48 --

44
provisions do not suggest the absence of a general equal
sovereignty limit on Article I. As they point out, these
provisions speak only to whether Congress can treat states
differently when Congress itself does the legislating, not
whether Congress can allow some but not other states to
exercise the sovereign authority to legislate on an issue. That
is, the provisions guarantee the states equal treatment for only
specific subjects rather than equal sovereignty for only those
subjects. The key for present purposes, however, is that even
though the Founders plainly knew how to include equality-
based protections for states in Article I when they wished to,
they did not include any mention of State Petitioners’ broad
equal sovereignty principle. The fact that some constitutional
clauses explicitly contain an equality-based guarantee
therefore supports a negative inference—though perhaps only
a mild one—that the Commerce Clause is not so constrained.
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,” such as the
doctrine of state sovereign immunity. Franchise Tax Bd. v.
Hyatt, 139 S. Ct. 1485, 1498–99 (2019). That category also
includes limits on the Commerce Clause, such as the Tenth
Amendment anticommandeering doctrine, which are supported
by the historical context in which our federal structure was
created. See New York v. United States, 505 U.S. 144, 163–66
(1992) (discussing founding era debates supporting the
anticommandeering doctrine). The evidence the parties
provide from the founding era, however, does not show that
State Petitioners’ version of the equal sovereignty principle has
a comparable historical pedigree. It is true, as State Petitioners
urge, that the general subject of state sovereignty and the states’
relation to each other and the new federal government was a
core focus at the founding. Despite that focus, however, State
Petitioners have identified no evidence that the Founders

-- 44 of 48 --

45
contemplated the type of inviolable equal state sovereignty
State Petitioners ask us to announce.
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 “little States
insisted on retaining their equality in both branches” while the
“large states . . . urged that as the new Government was to be
drawn principally from the people immediately”). For
example, New Jersey delegate William Paterson used the
concept of “equal sovereignty” to support his argument for a
single legislative chamber with an equal vote for each state.
Wesberry, 376 U.S. at 11 (citing 3 The Records of the Federal
Convention of 1787, at 251 (Max Farrand ed., 1911)).
Eventually, these debates led to the Great Compromise, which
established two forms of equality central to Article I: “equal
sovereignty” in the Senate in the form of equal representation
for each state and equal representation for each voter in the
House in the form of proportional representation. U.S. Const.
art. I, §§ 2, 3; see also The Federalist No. 39, at 255 (James
Madison) (Jacob E. Cooke ed., 1961). The Founders’
preoccupation with the manner and extent of state equality
under the Constitution also appears to have yielded the specific
equality-based limits on Congress’s legislative authority
discussed above. If the Constitution also contained State
Petitioners’ fundamental yet unstated limit on Congress’s
authority to legislate, one would expect ample historical
evidence of that limit at the founding. State Petitioners point
us to none. Cf. New York, 505 U.S. at 163–66.

-- 45 of 48 --

46
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. Article I, Section 10 provides that “No State shall,
without the Consent of Congress, lay any Duty of Tonnage,
keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign
Power.” U.S. Const. art. I, § 10, cl. 3. That is, Congress has
the power to grant individual states greater authority to, for
example, assess taxes and even enter compacts with foreign
powers—indisputably elements of “sovereignty”—without
extending the same authority to other states. See Wheeling, P.
& C. Transp. Co. v. City of Wheeling, 99 U.S. 273, 283 (1878)
(“Taxation, beyond all doubt, is the exercise of a sovereign
power . . . .”); Cuyler v. Adams, 449 U.S. 433, 440 (1981)
(compacts necessarily “tend[] to the increase of political
power” for the states (quoting U.S. Steel Corp. v. Multistate
Tax Comm’n, 434 U.S. 452, 468 (1978))). Early Congresses
used Article I, Section 10 in this very manner, granting specific
states legislative authority to impose tonnage duties. See, e.g.,
Act of Feb. 9, 1791, ch. 5, 1 Stat. 190 (consenting to Maryland
statute imposing duty at Port of Baltimore); Act of Aug. 11,
1790, ch. 43, 1 Stat. 184 (consenting to Georgia, Maryland, and
Rhode Island statutes imposing tonnage duties). If this
provision were—as State Petitioners would have it—a limited
exception to an otherwise generally applicable equal
sovereignty guarantee implicit in the Constitution, we would
expect to see some founding era discussion of how the
provision interacts with that broader equal sovereignty
principle. Yet State Petitioners identify no evidence of that
either.
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

-- 46 of 48 --

47
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 (“At the
founding, the law of nations entitled all sovereigns to perfect
equality.” (internal quotation marks omitted)). That argument
is unpersuasive. International law contained no analog for the
relation in our constitutional system between the federal
government and the states, and so it would be surprising if the
law of nations dictated limits on Congress’s authority in
relation to the states. And, as it turns out, the Supreme Court
has effectively explained that the Constitution’s Supremacy
Clause defeats State Petitioners’ reasoning. In Gibbons, the
Court held that while states may have equal sovereign authority
to regulate commerce in the absence of federal action, that
authority is “subjected . . . to the superior power of Congress”
when Congress acts. 22 U.S. at 70. Indeed, the Gibbons Court
cited the very same law of nations principles that State
Petitioners rely on, but only to describe the relationship
between the states when Congress has not acted pursuant to its
commerce power. Id. at 69–70. No case since Gibbons has
said otherwise.
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).

-- 47 of 48 --

48
Section 209(b) is subject to the rational basis review
normally applied to Commerce Clause legislation. See Hodel,
452 U.S. at 276–77. And because State Petitioners present no
argument that Section 209(b) or the waiver at issue cannot
survive that review, we reject their constitutional challenge.
State Petitioners’ request to set aside the Administrator’s
decision on these grounds is denied.
So ordered.

-- 48 of 48 --