During the Oral Arguments for 'Diamond International, LLC v. EPA', Supreme Court Justice Sonia Sotomayor questioned an attorney about fuel markets in California.
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00:00We had Energy Future Coalition and plenty of evidence to satisfy it, and the court below, without citing it...
00:04That is really unfair, Mr. Wall.
00:07They were under a mistaken understanding, partly because of the submissions in this case,
00:14where you were just complaining in your papers about this rule being in effect only until 2025.
00:22So, Justice Sotomayor, that is part of the mistake that the Court of Appeals made, but its error was more fundamental.
00:28When it looked at standing, it should have said, we have Energy Future Coalition.
00:34It tells us that we have redressability in the same industry, fuel producers, if the regulation locks them out of the marketplace.
00:40It didn't say that. It turned to the evidence.
00:42And then rather than on the evidence saying, well, this is more than enough to satisfy cases like Department of Commerce or Alliance of Hippocratic Medicine,
00:50it said, not enough here.
00:52And what that really amounts to at the end of the day is we couldn't get an affidavit from an automaker who didn't intervene.
01:00They sat on the sidelines. They didn't want to participate.
01:03And because we couldn't get them to stick their hand up, we didn't have someone saying, here is how I will change my fleet absent the waiver.
01:10And that's what we didn't have.
01:11And if that's what it's really going to take for an indirectly regulated party to get into court,
01:16it's going to be far more difficult to challenge governmental action.
01:19And these cases are going to become more expensive and, frankly, arbitrary,
01:22because it will turn on whether the directly regulated industry likes the rule or they don't.
01:28And as far as my clients are concerned, that shouldn't matter one whit.