[00:00:01] Speaker 05:
Thank you. You may be seated.

[00:00:06] Speaker 05:
Again, good morning and welcome. This is the time set for oral argument in the case of State of California versus United States of America, American Free Enterprise Chamber of Commerce and Western States Trucking Association and Construction Indice Industry Air Quality Coalition, Inc. If the council's ready, you may come forward.

[00:00:48] Speaker 01:
Thank you, Your Honors. And may it please the Court, Michael Bushbacher for the joint interveners, national trade groups representing the auto industry, the liquid fuels industry, auto dealers, fuel retailers, and large fleet purchasers. I'd like to reserve five minutes for rebuttal. I'm here with Council Theodore Hajjantic, who represents WSTA and CAIAC. He's reserved five minutes to discuss those groups' specific interests.

[00:01:12] Speaker 01:
For well over a decade, automakers, liquid fuels interests, EPA, California, and others have wrangled about that state's authority to force vehicle electrification using California's special treatment under the Clean Air Act. Just over a year ago, Congress stepped in and largely ended that debate through new legislation under the Congressional Review Act that reinstates federal preemption of three California regulations under Section 209A of the Clean Air Act. California and 10 other states sued, and we promptly moved to intervene.

[00:01:42] Speaker 02:
Can I ask you a question? Your reply brief says that Section 209A protects all entities selling and buying new motor vehicles.

[00:01:52] Speaker 02:
And so help us kind of draw the line, because I assume your position is not that every consumer in America who buys – a vehicle should be an intervener in this case. Is that right?

[00:02:03] Speaker 01:
Yeah, I think so. This court has said and the Supreme Court has said that the interest has to be significantly protectable. So automakers, auto dealers, the folks who make the fuels that power those cars and trucks, those folks have a significant interest here. Someone who maybe someday wants to buy a car, it's not the same. That said, this court has taken a very broad view of intervention, including in cases where individuals, often as members of an environmental group, have been allowed to intervene based on their personal interests in things like wildlife and habitat.

[00:02:37] Speaker 01:
That's fine. It's just those who want to buy cars.

[00:02:41] Speaker 02:
Why aren't the fuel producers too far removed?

[00:02:46] Speaker 02:
Because there's a lot of steps to actually get to finding that they're actually impacted.

[00:02:50] Speaker 01:
No, I don't think there are a lot of steps at all. You can't drive a car off the lot unless there's some fuel in the tank if it's a conventional vehicle. And the Supreme Court's decision in Diamond Alternative just last year said that it's a matter of common sense economics to see the impact on fuel producers. And that makes a lot of sense. Actually, the object of California's regulation here

[00:03:14] Speaker 02:
It seems like, though, you need a couple of steps. You need that the waiver gets reinstated, that California is going to regulate the new vehicle emissions, that the zero emission car sales are going to go up, so the demand for oil is going to go down. It does seem like there are a few links in the chain, no?

[00:03:30] Speaker 01:
So the first part of the first two steps are California wins the case and it gets what it wants. So I don't think there's any sort of inferential chain there. Assuming California wins, right, that's the question of whether their victory would impede or impair our interests, which this Court has said is a broad and flexible inquiry.

[00:03:50] Speaker 01:
That's not going to maybe decrease the sales of conventional vehicles. That's what these regulations require. And California has said that it wishes to enforce them. Indeed, it has threatened retroactive enforcement against the auto industry if it prevails in this case.

[00:04:08] Speaker 01:
Again, you can't drive a vehicle without fuel in the tank. And this is very – the argument I think you're making is very similar to the argument that was in Diamond Alternative.

[00:04:18] Speaker 04:
So where do you think the line is? So you say the fuel producers are in, but a consumer of the vehicle is out. So where's the sort of the marginal case in your view, if you can imagine a more marginal?

[00:04:34] Speaker 01:
Yeah, so – Well, for one thing, I'll point out the California and the district court seem to take the position that to avoid that line drawing problem, we're just not going to let anyone intervene. And I think that's a totally wrong way of reading Rule 24.

[00:04:46] Speaker 01:
The distinction about what is significantly protectable, this court has said, is kind of, it's a little bit difficult to parse out. And I think that's true. I think it's got to be something where if you could go to court to vindicate your rights, that's, I think, what significantly protectable has got to mean. If you can go to court and claim the benefit of this preemption provision, then I think you do have a significantly protectable interest. This court has taken the position that standing is not necessary to intervene in every case, but I do think it's relevant, and other courts like the D.C.

[00:05:21] Speaker 01:
Circuit have said correctly, in my view, that if you can show standing, in other words, if you can get into court, then that's a fortiori enough to show that you have a significantly protectable interest. And I think that makes a lot of sense. I mean, the direct objects of the regulation are here. We don't have a bunch of individuals. We have the trade organizations that represent all of these industries, and there are billions of dollars at stake. And if any interest is protectable, that is certainly significant.

[00:05:59] Speaker 01:
So one of the things that the district court got wrong in framing the interest is it didn't look at any of this. Instead, it looked at the arguments that California was making in congressional procedure and said that we didn't have some abstract interest in that. And that's wrong under the text of Rule 24A. Rule 24A says to look at the transaction. And the transactions here are the resolutions. And those resolutions aren't merely something that provide us a benefit.

[00:06:30] Speaker 01:
They're also new legislation. And so the way they work is they repeal these waivers of preemption that California had obtained from EPA previously. And by doing that, they make those rules, those state rules, again preempted by Section 209A of the Clean Air Act. And the Supreme Court has said that that protects the right to buy and sell vehicles in the Energy Marketing Association, or I'm sorry, the Engine Manufacturers Association case.

[00:07:00] Speaker 01:
And there has been litigation for years involving the auto industry, the fuels industry, There's never been any serious question that those groups should have access to court to at least test the validity of what Congress or EPA has done.

[00:07:15] Speaker 02:
So let's say we agreed with you on the car makers and the car dealers under 209. And so then the Chamber of Commerce would also fall into that category because they include car makers and car dealers.

[00:07:29] Speaker 01:
And purchasers, yes.

[00:07:30] Speaker 02:
But the Chamber also includes... the fuel producers, the convenience stores, the corn growers who, let's say we don't agree with you that they're covered under 209. Why wouldn't the Chamber's participation adequately represent the interest of the corn growers, the convenience store owners, and the two fuel producers?

[00:07:55] Speaker 01:
So two points on that. One is the American Free Enterprise Chamber of Commerce does not have the automakers as members. It does not have...

[00:08:04] Speaker 01:
And all of the – there are some members who are in the fuel industry, but it's not the same swath of fuel interests that are represented by the – Okay, wait, wait, wait, wait.

[00:08:14] Speaker 02:
Then maybe the Chamber doesn't get in either then. So you're saying the Alliance for Automotive Innovation, they're not members of the American Free Enterprise Chamber of Commerce?

[00:08:22] Speaker 01:
They are not.

[00:08:24] Speaker 02:
Oh, okay. What about the National Automobile Dealers Association? Are they members of the American Free Enterprise Chamber of Commerce?

[00:08:31] Speaker 01:
No, they're not.

[00:08:32] Speaker 02:
Oh, okay. So then if we were to say under 209, the Alliance for Automotive Innovation and National Automobile Dealers Association would have a right to intervene, that would not extend to the Chamber of Commerce because they're not members.

[00:08:48] Speaker 01:
Not based on membership. I do think it would because of the interest that AMFRI does represent. So the American Free Enterprise Chamber has members who are dealers, so that brings them into the same bucket, same kinds of interests.

[00:09:01] Speaker 02:
But dealers who are not members of NADA. Is that right?

[00:09:03] Speaker 01:
I don't know if they're members of NADA or not. There's an RV dealer, Demartini, that's a member that provided a declaration. Happy to run that down for you. But the point about adequacy is about comparing to existing parties. That's what the rule says. And none of these groups are currently parties of any sort in this litigation.

[00:09:26] Speaker 05:
So you're saying AMFRI... should be granted intervention as of right, basically because its members include dealers, motor vehicle dealers?

[00:09:37] Speaker 01:
That's one basis for yes. They also include folks who make ethanol that go into the fuel.

[00:09:43] Speaker 01:
So they have fuel producer members, and they have folks who are large fleet purchasers who buy large quantities of vehicles who are negatively impacted by these electric vehicle mandates.

[00:09:54] Speaker 02:
So why wouldn't they represent the interest of the fuel producers, corn growers, and the convenience stores?

[00:10:02] Speaker 01:
I think if AMFRI were allowed in as a member and then say these other groups came in later and tried to intervene, that would be a situation where the adequacy question could come up. But that's not the situation we have here.

[00:10:14] Speaker 02:
I know, but answer the adequacy question. why wouldn't AMFRI Enterprise Chamber of Commerce not adequately represent the interests of the two fuel producers, corn growers, and convenience stores?

[00:10:26] Speaker 01:
So the AMFRI does not, as far as I'm aware, represent upstream fuel manufacturers or oil majors.

[00:10:34] Speaker 01:
So that's a distinction. I think those interests, I'm not saying that they wouldn't necessarily be adequately represented. I don't think there's any dispute. I mean, there's a reason why I'm here arguing for all of them because I think all of our interests are aligned, and we all moved to intervene at roughly the same time. So this is different than cases like Arakaki where you had a group that had intervened.

[00:10:57] Speaker 02:
So you're saying the fuel producers that are represented by AMFRI are different than the fuel producers in American Petroleum Institute and American Fuel and Petrochemical Manufacturers? Yes.

[00:11:13] Speaker 01:
And again, I don't see any practical reason to make distinctions here.

[00:11:18] Speaker 02:
But what difference in interest would they have depending on where they are in the fuel production chain?

[00:11:25] Speaker 02:
Why would that cause any difference in their interest in this case?

[00:11:29] Speaker 01:
I'm not sure that it would, but there's no reason to favor one particular group of interveners or potential interveners over others at this junction point.

[00:11:39] Speaker 02:
And this court has said, going back to Andrus quoting that famous – Well, it's adequacy of representation is the question, right? Of existing parties.

[00:11:48] Speaker 02:
My premise here was assuming automakers and auto dealers have a right to intervene under 209, right? And if we put Amfree in there because they represent auto dealers, then why wouldn't that adequately represent any of the interests of the corn growers' convenience stores and fuel petroleum companies?

[00:12:07] Speaker 01:
I'm not saying that they wouldn't be able to represent some of those interests, but there's certainly not a complete identicality of interests, which is what this court said in Arakaki is the baseline question. And it said that the test for adequacy is minimal. And, again, it would be an interesting question, and it's a question similar to what came up in Arakaki where you had a Native Hawaiian who wanted to intervene in a case where a group that represents Native Hawaiians had already intervened. And in that case, the court said that that was significant.

[00:12:40] Speaker 01:
Here, however, no one has been allowed to intervene. And so I think that's just not the issue that's before the court. I take your hypothetical. I can imagine a case like that. It's just not this one. And I don't think one group of interveners should be privileged over any of the others here. I don't think it would cause any practical inconvenience either if all of us were allowed in.

[00:13:02] Speaker 01:
I want to say a few points about...

[00:13:06] Speaker 01:
adequate representation. So the federal government does not adequately represent our interests. It regulates our interests. And the government is also not making the arguments that we think they should be making at the motion to dismiss phase. In fact, I think they said on page two of their letter to this court that it would be inappropriate to have those arguments before the court. We disagree. Those arguments matter. And the question of whether waivers are rules under the Congressional Review Act is the linchpin of California's entire case.

[00:13:41] Speaker 01:
So that argument is very important. Under cases like Western Watersheds Project and Berg, I think that easily satisfies the test for showing why the government's not adequate. The other thing that I'll point out on this is there are really two points that you need to look at when considering adequacy. One, as I mentioned before, is do they represent, does the existing party represent the interests of the proposed intervener? And then second, if they do, is it adequate? And so the questions about litigation strategy and those sort of things all go to adequately, are they doing a good enough job or do they represent those interests in a way that's not diluted by other considerations?

[00:14:21] Speaker 01:
When it comes to that first point, though, this court has said in cases like Forest Conservation Council that What matters is whether the federal government is charged to represent the interests of the proposed intervener. Again, the federal government does not represent the auto industry. The federal government does not represent fuel manufacturers. It regulates them. And that's different from cases like Geithner or cases like the City of Los Angeles case where there were individuals who were as individuals within the sort of parents' patriae, representation, responsibility of the federal government.

[00:15:00] Speaker 01:
So that distinction, I think, is very important.

[00:15:03] Speaker 05:
Did you want to reserve your time?

[00:15:06] Speaker 01:
Yes, Your Honor. Thank you.

[00:15:21] Speaker 00:
Good morning. Theodore Hadjiantis for Appellants Western States Trucking Association. I'll refer to them as WSTA. And also for Construction Industry Air Quality Coalition, I'll refer to them as kayak. I'm joined today by my colleagues, Eric Haggis and Laura Beth Latimer. And also in the court this morning are Lee Brown, Executive Director of WSTA, and William Aboudi, President of Oakland Port Services, a member of WSTA. May it please the court.

[00:15:52] Speaker 00:
Mr. Aboudi's declaration states that if the ACT rule goes back into effect, Oakland Port Services purchase costs per truck will increase by approximately $300,000, and the company will not be able to continue running its business profitably. And our brief demonstrates that if California receives the relief it requested, the ACT rule will indeed increase go back into effect, and Oakland Port Services will thereby automatically suffer those injuries by impeding, as a practical matter, its protectable economic interests.

[00:16:32] Speaker 00:
The contents of the declaration are unrebutted. Under this Court's decision in Center for Biological Diversity, a district court is required to accept as true the non-conclusory factual allegations that you support.

[00:16:46] Speaker 02:
You make the argument that because you have a lawsuit against the federal government in a different court on a related matter, that that rebuts the presumption of adequacy of representation by the federal government. And in the reply brief, you don't cite any authority for that proposition. In the opening brief, you do cite a First Circuit case that seems not on point. That case isn't referred to again in the reply brief. Do you have any legal support for that proposition?

[00:17:18] Speaker 00:
Your Honor, I think a little bit of background here is an important preface to answering your question.

[00:17:26] Speaker 00:
We've had for a very long time a challenge in the DC Circuit to the ACT waiver grant by EPA. That challenge has been put in abeyance pending the results of this case.

[00:17:44] Speaker 00:
So consequently, the briefing is stopped, and now we're here talking about the validity of the Congressional Review Act.

[00:17:55] Speaker 00:
But for this case, we would have been able to finalize the briefing, go to oral argument, and determine who wins that case. Because of this case, we're not able to do that. So this case has already impacted our litigation posture in the other case.

[00:18:12] Speaker 04:
I mean, do you have any cases that you can point us to where we said that there was a right to intervention because of that kind of litigation? I mean, it can't be the case that just filing a lawsuit in another circuit then gives you a right to intervene in a case. So I share Judge Ko's question.

[00:18:33] Speaker 00:
Well, it I'm not going to be able to point to a specific case there, but I think it's a matter of practicality. And, of course, under 24A, the issue is what are the practical impacts on the results of this litigation. If California receives the requested relief, the practical impacts are that Mr. Aboudi will automatically – be required to pay $300,000 extra for the truck.

[00:19:09] Speaker 00:
There's going to be a period of time between this court's decision and reconvening of the D.C. Circuit case. During that period of time, it's going to be about a year and a half, maybe two years, because we're still in briefing as opposed to oral argument. Those specific injuries are going to happen. So as a practical matter, under the Rule 24A case law of this circuit, as a practical matter, that is going to be the injury.

[00:19:42] Speaker 00:
And this court's decision is actually in three binding cases, Allisol Water, Citizens for Balanced Use, and Lockyard, which deal with the confluence of protectable economic interests and adequacy of representation. Those three cases required the district court to grant WSTA's motion to intervene as of right And accordingly, this court should reverse. And that's because both the practical impact and the inadequacy of representation have been shown.

[00:20:13] Speaker 00:
I'm happy to address any additional questions that you may have and reserve the remainder of my five minutes for rebuttal. Okay. Thank you. Thank you.

[00:20:39] Speaker 03:
Good morning, Your Honors, and may it please the Court, Cecilia Siegel for the Plaintiff States.

[00:20:44] Speaker 03:
At its core, the case below involves a dispute between the federal government and 11 plaintiff states over the United States' unprecedented attempt to use the Congressional Review Act to nullify state laws. The various automakers, corn growers, truck drivers, and gas station owners seeking to intervene here haven't established a protectable interest that is related to those issues or that would be impeded by their resolution.

[00:21:09] Speaker 04:
So as to the automakers, they can enforce Section 209 by seeking prospective relief. They can raise preemption of state regs on new vehicles as affirmative defenses. I mean, why is that not enough to give them a protectable interest?

[00:21:28] Speaker 03:
Yes, Your Honor. A few responses there. I think, first, the focus of what was before the district court was really an asserted interest in the economic stakes they had in the lawfulness of EPA's decision to issue the waivers in the first place and not this broader preemption interest that they've been focusing on in appeal. And even though this court's review is de novo, that's still not licensed to the appellants to be shifting their arguments to see what sticks. And I think regardless, there does need to be a limit, as this court has alluded to in questioning my opposing counsel, and they haven't been able to draw that line.

[00:22:01] Speaker 03:
If you equate it to a cause of action, there's no limit there. And I think under Rule 24, there is a balance. As the panel in Akina v. Hawaii referenced, there's two potentially conflicting goals. On the one hand, trying to achieve judicial economy when the interests truly are related and resolving those interests in one suit versus preventing the case from becoming unendingly complicated and burdened. And so I think here, on the Section 209 theory and the cause of actions that may be available, there's nothing to distinguish that from All of the move-ins, all 20 of the move-ins here are in appeal.

[00:22:37] Speaker 03:
And I would point the court here to Wista's opening brief where they frame the inquiry as whether operators of heavy-duty trucks can intervene in this case. And that's thousands, if not millions, of individuals who would have that interest.

[00:22:51] Speaker 02:
But why wouldn't we at least draw the line at car makers and car dealers? Even if we say, okay, we don't want to talk about anyone else downstream, but let's at least let those two in.

[00:23:01] Speaker 03:
And it could be that they would have a sufficient interest under Section 209. It's not a zero-sum game.

[00:23:07] Speaker 03:
It may be that it would be appropriate to remand to the district court to consider where that line might be with the benefit of the briefing in front of this court and this panel's decision. But even if they did have an interest under Section 209, they still fail on the impairment and adequate representation prongs. So interest is just one piece.

[00:23:24] Speaker 02:
On which prongs? I'm sorry.

[00:23:25] Speaker 03:
On the impairment and adequate representation prongs. So this interest question is just one piece of the puzzle. And the case law is clear that their failure to meet any single one of the four factors under Rule 24.8.2 would be fatal to their application.

[00:23:39] Speaker 05:
But it seems like potential interveners' waivers as rules argument might be colorable.

[00:23:53] Speaker 05:
And do you have a view why the federal defendants did not raise that argument in its – initial or in its motion to dismiss?

[00:24:04] Speaker 03:
Yes. Well, the federal government answered that both in front of the district court and in a letter to this court stating that they had made a litigation choice not to raise that particular argument in their motion to dismiss, but that they were not abandoning or conceding the argument. And that's what distinguishes this case from the Western Watersheds Project v. Holland case that the joint interveners rely on. Their summary judgment represented the final merits phase of the case. So the existing party's failure to raise colorable arguments at that point resulted in forfeiture of the arguments. And that's simply not the case here.

[00:24:35] Speaker 03:
And that one argument aside, everything to date about the federal government's defense has shown that they are zealously representing or defending the congressional resolutions.

[00:24:43] Speaker 04:
Well, they haven't abandoned that argument, but we also don't know that they will actually affirmatively make the argument later in litigation. And the proposed interveners say, well, that is an argument they want to make. So why? I mean, that...

[00:25:01] Speaker 04:
It seems sufficient under our case law.

[00:25:03] Speaker 03:
Well, but the case law does require more than mere speculation.

[00:25:07] Speaker 03:
And so I point the court to the kind of the contrast between the Lockyer and Citizens for Balanced Use cases that WSTA and the Anne Free movements have been relying on versus the court's cases in Perry v. Proposition 8 official proponents and Eric Kaki v. Cayetano. So on the one hand, there's the cases they rely on in which the federal government had already taken certain actions that showed that their representation was inadequate. In Lockyer, the federal government had conceded construction of the challenged amendment that potentially eviscerated the interests that the movements were trying to assert.

[00:25:41] Speaker 03:
In Citizens for Balanced Use, the government was actively trying to overturn the district court decision that required them to issue the rule that they were supposed to be defending to begin with. In contrast, in Perry and in Arakaki, the movements were kind of in similar postures here where they were positing that certain arguments might not be made further down the line. And the courts there held that that wasn't sufficient absent any sort of evidence or that either the argument would be a necessary one that the government was not able and willing to make or that there was any conflict that would have prevented the government from being able to make that argument.

[00:26:15] Speaker 03:
And those facts simply aren't present here. I mean, this is the waivers are rules argument is a purely legal argument. involving a federal agency on a question of federal procedure. There's no question that the federal government is entirely capable of making that argument. It's not unique to any sort of expertise offered by the proposed interveners here. And in any event, they can represent those views as amici, as they did at the motion to dismiss stage. I think it's also important to note that joint interveners themselves acknowledge that that argument isn't a necessary element of the case.

[00:26:47] Speaker 03:
They may prefer it, But at page nine, I believe, of their joint reply brief, they acknowledge that, sorry, page 31, that it's an alternate avenue for resolving or simplifying the issues, simplifying the case. So at bottom, this isn't a fundamental difference in approach to the case and the same ultimate objective that they share with the federal government, which is to defend the constitutionality of the congressional resolutions. And again, as this court has twice made clear, that presumption arises is nowhere more applicable, perhaps, than in a case like this one, where the Department of Justice has deployed its formidable resources to defend the constitutionality of the resolutions.

[00:27:29] Speaker 03:
And so the fact that they may prefer to make this argument really just comes down to a question of style and degree, not the ultimate bottom line. And again, I'd point the court back to the Perry case on that point, which no proposed intervener has attempted to distinguish at all.

[00:27:43] Speaker 02:
Let me ask you, if you seem to concede that for carmakers and car dealers, they have a good 209 argument, so would that also extend to the Chamber of Commerce that includes car dealers or not?

[00:27:56] Speaker 03:
No, Your Honor. I think the case law that they rely on there really, and our own case, MIMO 1, really reflects that Section 209 is meant to protect the manufacturers and not everyone who might otherwise have a cause of action under 209 or Section 307, which is the other source of law that they point to under the Clean Air Act.

[00:28:11] Speaker 02:
Wait, but I thought earlier you just conceded that dealers would also have a good argument under 209. That's the way my question was phrased, and you seem to agree.

[00:28:19] Speaker 03:
It could be that manufacturers and dealers might because it's prior to the point of sale.

[00:28:25] Speaker 02:
Okay, then I don't understand your position. Earlier you conceded that for car makers and car dealers, they have a good argument under 209, And so if the Chamber of Commerce includes car dealers, then I don't understand why they wouldn't equally have a good argument under 209.

[00:28:41] Speaker 03:
I see. I apologize. I misunderstood your question. They might still have the same interest argument. But going back to the questions you were asking opposing counsel earlier, I do think there is kind of a sequencing that may happen, as the Supreme Court actually recognized in the Berger case that they cite, where the district court, if on remand, is sorting through these interests. might determine that it could grant some of those movements intervention and then determine that in doing so, the interest of any remaining interveners, and that's the language used in Berger, any remaining interveners' interests may be adequately represented at that point.

[00:29:14] Speaker 05:
So if the carmakers and dealers have a good basis under 209 to intervene, why shouldn't the other entities involved here be given more consideration or due consideration under permissive intervention?

[00:29:41] Speaker 03:
Yes, Your Honor. Well, the district court does have a significant amount of discretion. And on this question of whether there's a burden or delay by allowing here 20 different entities permission to intervene in the case, That alone can be a reason to deny.

[00:29:59] Speaker 05:
But it seems to me the district court, when it was reviewing permissive intervention, reviewed everyone, kind of this umbrella of review for everybody, and then included adequate representation, which I think is the consideration under intervention as of right. So I'm trying to figure out what do we do with that in light of how the district court made its assessment in denying permissive intervention to, well, in this case, to everyone as well?

[00:30:37] Speaker 03:
A few responses, Your Honor. First, this court has made clear in both Spangler and Perry that adequate representation can be a factor justifying denial even under permissive intervention. So there can be overlap there. but burden or delay is a separate factor that could justify denial, as this court held in Montgomery v. Rumsfeld, where the court found that it was well within the district court's discretion to determine that allowing an additional 13 plaintiffs into the case would be unduly burdensome.

[00:31:09] Speaker 03:
And here we have 20 in front of the district court. It was 21 on the defendant's side. The fact that the court then decided to deny intervention as to everybody, including an unopposed motion on the plaintiff's side, I think just shows that the district court really did determine that the existing parties in the case can adequately represent the issues that are presented here, which is really this unprecedented federal process that unfolded and how it impacted states' rights. And it was just an even-handed decision not putting any one group of intervener over another and deciding, I'm not going to let anyone in.

[00:31:40] Speaker 03:
I'm going to give them an opportunity to participate as amici, which this court has repeatedly found can be sufficient. And then...

[00:31:48] Speaker 03:
rest on that adequate representation ground. And turning back to that, again, that's an independent basis on which this court can affirm.

[00:31:56] Speaker 02:
But there's also case law that says that amicus status is not sufficient, right? Because they don't have a right to appeal. They can't formally raise motions and arguments.

[00:32:06] Speaker 03:
That's right, Your Honor. But nowhere have they articulated why party status is necessary for them. They've articulated this one legal argument that they want to make, that they did make as amicus, In the Yim case that they rely on, the court recognized that, of course, the district court can consider those arguments if it thinks it would be helpful to them. The plaintiff states responded to those arguments in our brief opposing motion, the motion to dismiss. Several groups of amici also responded to the argument. So the issues are before the district court. I agree that it's not required to address those issues, but it certainly can.

[00:32:39] Speaker 03:
And if it becomes apparent down the line that the federal government really isn't going to be making that argument, that may be a reason for them to renew their motions to intervene at that point. But that's just not where we're at right now.

[00:32:51] Speaker 02:
On your forfeiture argument, it looks like at least for the dealers, makers of cars in the chamber, they did cite 209 as the source of their legally protected interest in their motions to intervene. So why isn't that enough to raise the issue?

[00:33:06] Speaker 03:
But in doing so, really overwhelmingly framed it, and this is basically verbatim language from Anne Free's motion, is that it was a 209 and a 307 interest in the economic interest in the lawfulness of the waiver decisions, not stemming from the resolutions themselves. And that all just underscores the fact that those interests aren't sufficiently related to the issues that are being argued in the case below. And even if they were, wouldn't be impaired by the disposition here because they can still make those arguments in the litigation that's already pending challenging whether those waivers were lawfully issued to begin with.

[00:33:44] Speaker 03:
And this court, in several cases, City of LA, the Akina v. Hawaii case, among many others, has repeatedly said that an opportunity to protect a movement's interest in an alternate forum can be a sufficient basis to deny. Even in the Lockyer case there, said that the fact that an interest may be affected doesn't necessarily mean that it's impaired if there are other means to protect the asserted interest.

[00:34:11] Speaker 03:
I'd like to move back to some of the adequate representation arguments that have been made. They argue that they have diverging interests because some of the movements represented are regulated by the California standards or otherwise just have interests that are more economic in nature than the federal government. That fact alone can't be enough to rebut the presumption of adequate representation that all the parties agree applies here because otherwise it would just completely upend that presumption and would often be true when there's a private party moving alongside the federal government.

[00:34:44] Speaker 03:
Again, the presumption that applies here is whether or not the federal government and the proposed interveners share the same ultimate objective. They do. It is defending the constitutionality of the resolutions. The fact that they've alleged different interests hasn't materialized into any sort of significant dispute or approach to the case, as this court has found, I believe in LULAC as well.

[00:35:08] Speaker 02:
Let me ask you a question on the car makers and the dealers and maybe the Chamber of Commerce, if we were to find that they had a legally protectable interest under 209, why wouldn't we just outright reverse? You're saying no, send it back to the district court and let the district court make that decision and just reverse on the one issue that they didn't have a legally protected interest? Or why would we do that?

[00:35:31] Speaker 03:
Well, to be clear, the court could affirm if it agrees on the adequate representation prong, even if it disagrees and finds that there is an interest under Section 209.

[00:35:38] Speaker 02:
Okay, assume we disagree on that.

[00:35:40] Speaker 03:
Yes, Your Honor. This court certainly could decide which parties, which of the movements, if any, are entitled to intervene based on interest or inadequate representation. Remand may be appropriate just because there is a bit of a line drawing test. And again, this wasn't the focus of what was presented to the district court. So it would give the district court the opportunity to kind of sort through all of that, potentially sequence it as Berger contemplated, potentially apply case management conditions,

[00:36:08] Speaker 02:
Is that sequencing more in the case of permissive intervention, or it's also in intervention as of right?

[00:36:16] Speaker 03:
I think it could be both. These were five separate motions presented to the district court that it ultimately ruled on in the same order, but the district court has inherent authority to manage its own docket, so it could treat those motions independently and decide after granting one that it would deny the rest.

[00:36:34] Speaker 02:
Well, even the intervention as of right has as an element, are your interests adequately represented? So you're saying in that determination, if you did it sequentially, you could decide, okay, once auto makers and auto dealers are in, do you really need the chamber?

[00:36:51] Speaker 03:
That's right.

[00:36:53] Speaker 03:
The remand may also be appropriate because it may address any timing concerns that might come up, just given that the district court is poised to rule on the pending motion to dismiss, which hopefully doesn't, but could result in a dismissal of the case and then a subsequent appeal. So it would give the district court the ability to determine which parties really should be in the case before any potential appeal.

[00:37:18] Speaker 03:
Just a few notes on the impairment prongs, Your Honor. The proposed interveners, again, effectively admit that the economic interests that they're seeking to vindicate here overlap with the same interests that they're trying to vindicate in the separate waiver litigation that is pending. They cite the automatic effects that may spring up if plaintiff states are ultimately successful in the suit below. But again, if anything, that just underscores that the consequences they're asserting here are attenuated and just a stake in the outcome of the case, which this court has held isn't sufficient under the Green and Ali Sal cases.

[00:37:52] Speaker 03:
And if they are worried about these interim effects that may rise up, they can always seek a stay of the waiver decisions to prevent those alleged effects from occurring.

[00:38:01] Speaker 02:
What's your view on whether the chamber has different interests than the car makers and car dealers?

[00:38:07] Speaker 03:
I don't think that they do, Your Honor, and I think counsel admitted as much. He said that their interests are aligned. And, again, they really focus on trying to parse what interests may be different among them. I don't think they were able to even articulate any. But that's not the question. The question is, do they share the same ultimate objective, even putting aside the federal government, all the proposed interveners here share the same ultimate objective. All of them want to make the same argument, our waivers rules. The rest of their proposed motions to dismiss of those who filed one almost entirely overlap, including with the federal government's brief, with the exception of that one argument that the federal government has simply chosen not to make yet.

[00:38:50] Speaker 03:
So again, I do think this is a scenario where all these proposed interveners are trying to jump into the case, and that just may not be warranted given what they have shown and on the record before the district court.

[00:39:08] Speaker 03:
Another point on adequate representation, Your Honors, the joint interveners pointed to the possibility that the federal government might someday abandon its defense. Again, that can't be enough on its own or else it would always append the adequate presumption that arises in cases such as this one. And what distinguishes Sagebrush on that point is that there, the change in administration had already occurred. And so the staffing change that resulted was that the Secretary of Interior had previously been head of the foundation that was representing the plaintiffs in that very same case.

[00:39:40] Speaker 03:
That is obviously distinct from what we have here. And as we explained in our brief, the fact that EPA has reversed course on a few of its waivers in the past is not at all probative of the question here as to whether the Department of Justice is going to be adequately defending the resolutions on constitutional grounds. That's where 28 U.S.C. 530D comes in. If the Department of Justice did choose to abandon at that point, it would have to submit a report to Congress, which would then have the opportunity to intervene or seek to intervene, which again just echoes this presumption that's arisen here, that the federal government is defending the resolutions on constitutional grounds.

[00:40:18] Speaker 03:
And again, just echoing that so far they're, they have been zealously defending the resolutions. I mean, their motion to dismiss didn't just focus on jurisdictional arguments. It also raised several arguments that plaintiff states failed to state a claim. And again, the government went so far as to write a letter to this court explicitly asserting that the waivers are rules argument was not conceded and was just a litigation choice that they did not make at the motion to dismiss stage.

[00:40:45] Speaker 03:
I see, Your Honors, that my time is up. Unless the panel has any further questions, plaintiff states would respectfully request that this court affirm the portion of the district court's ruling denying intervention as of right, and dismiss for lack of jurisdiction the portion of the district court's ruling denying permissive intervention. Thank you.

[00:41:03] Speaker 03:
Thank you.

[00:41:07] Speaker 01:
Thank you, Your Honors. Just a few quick points. One, on how complicated things would be, that seems to be the argument that California has made, is that they think more process is necessary on a remand. That is completely contrary to our view. We think that this should just be resolved now.

[00:41:24] Speaker 02:
But let's say if we find intervention as of right as to carmakers and car dealers, as far as the Chamber, to look at intervention as of right, still the fourth element is whether their interests are adequately represented by the parties to the action. And so if the only reason why Chamber would be eligible to intervene as of right is that it includes auto dealers, but if you already have auto dealers in the case – how would you satisfy that fourth element for intervention as of right?

[00:41:51] Speaker 01:
So AMFRI also represents other interests, including fuel interests.

[00:41:55] Speaker 02:
Right, but fuel interests are not, I'm sorry, they're way too remote to come in under 200.

[00:42:01] Speaker 01:
I respectfully disagree, Your Honor.

[00:42:02] Speaker 02:
I know you disagree, but I hope you can answer my question. And if you can't, that's all right, too.

[00:42:07] Speaker 01:
No, I'm happy to answer it. I mean, look, the question that you've asked is about, like, how do we make a hierarchy of who should go first? intervention. And that's not how this has been teed up. It's not like you had in the Eric Hockey case is a good example I mentioned earlier. One party moved to intervene and then you have other folks coming on later in the litigation. So that's just not the situation that we have. And so I don't think there's a principled basis for saying any of these proposed interveners should be considered above any of the others.

[00:42:40] Speaker 01:
And if I can return and push back on your premise, the The Diamond Alternative case is a Section 209 case, and it's about whether fuel interests could go to court. And the court said that that was obvious. It was like a very easy economic point. And the California government says that, look, economics is not enough, and that may be true. But if it's concrete, which is the same inquiry as Article 3 standing, and if it's protected by some law and all of the parties, including the fuel interests, referenced 209.

[00:43:17] Speaker 01:
This is on 3ER377 in the AFPM API brief or motion to intervene where they specifically invoke the protections of the uniform standards that the Clean Air Act imposes. Those uniform standards are accomplished by 209A. Thank you. Thank you, Your Honor.

[00:43:48] Speaker 00:
Regardless of how you view the argument regarding the pending case in the D.C. Circuit, we should be focusing on the requirements of Rule 24A.

[00:43:58] Speaker 00:
Citizens for Balanced Use held that factors for intervention are guided primarily by practical considerations such as the ones I've described with regard to Mr. Abudi's declaration. In addition, that same case stands for the proposition that Actually, Citizens states precisely that unless the government, quote, will undoubtedly make all the applicants' arguments, close quote, intervention should be granted.

[00:44:30] Speaker 00:
Lockyer is on all four points in this case. One other point, Your Honors.

[00:44:38] Speaker 00:
When you look at the ACT regulation, why did California promulgate that rule? It's because of emissions from trucks. Truckers are specifically the targets of the rule, even though they may not be the objects of the rule. It's emissions from trucks because California views those emissions as harmful. So truckers are more involved in this rule than perhaps any other party or applicants.

[00:45:13] Speaker 00:
Those emissions form the basis of the ACT rule. Without that, the ECT rule would not exist. Thank you.

[00:45:20] Speaker 05:
Thank you.

[00:45:22] Speaker 05:
The case of State of California versus United States of America, American Free Enterprise Chamber of Commerce, Western States Trucking Association and Construction Industry Air Quality Coalition is now submitted.

[00:45:36] Speaker 05:
Thank you, Ms. Segal, Mr. Bushmaker, and Mr. Haji Antic. We appreciate your arguments today. We are adjourned. Thank you.

[00:45:44] Speaker 01:
All rise.