During the Oral Arguments for 'Diamond International, LLC v. EPA', Supreme Court Justice Amy Coney Barrett questioned an attorney about the effect California emissions standards have had on markets.
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00:00Why will you be ping-ponged around?
00:05You know, you want the categorical rule.
00:07Imagine that I am not sympathetic to the categorical rule,
00:11but think that your clients could demonstrate standing based on the common sense inferences.
00:17You said that you've been ping-ponged around for 15 years,
00:20and so that's why you want the categorical rule.
00:23But if we just said you had standing, how can you be ping-ponged around?
00:25Oh, if this court declares that there's a common sense inference
00:28and applies to the Department of Commerce and says they met it here, you're right.
00:31We should be able then to get a determination on the merits.
00:34And as I say, I think the rule is right, but on either of those views,
00:37as long as the court says what we say about the Department of Commerce, you're right.
00:41We would be able to get a determination on the merits, which we've been trying to do for a very long time.
00:45So why do you care as between the—on that view of the world,
00:49why would you care other than you want to go for the big win as between them?
00:54The win is the same either way. I think the rule is right.
00:57I think it squares with the competitors' standing cases, and I think the logic of it is right.
01:01The injury here is not just what happens out there in the marketplace.
01:05We are prevented from getting in at all.
01:07And my concern, Justice Barrett, is that if you don't adopt the rule,
01:10it will always be an argument about what will happen in the marketplace.
01:13And that's very difficult to show once you have a governmental mandate,
01:17because the governmental regulation is skewing the entire market.
01:20And so as here, even though in the real world everyone knows that California standards have affected automakers,
01:26we have a whole debate now about whether, in fact, as a matter of common sense,
01:30they actually affected people.
01:32And even if they were affecting them in 2019,
01:34well, did things change in 2020 and 2021 in a way that by the time you sued in 2022,
01:40you might have had standing before, but now you no longer do?
01:43Yes, I think we're right about that debate, but I don't think we should have to have it in every case.