During the Oral Arguments for 'Diamond International, LLC v. EPA', Supreme Court Justice Ketanji Brown Jackson pressed an attorney about how California emissions standards will affect businesses across the state.
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00:00Can I understand the rule better? Because I had appreciated from your briefs that you had different theories, so I'm just trying to appreciate what's happening.
00:10Are you advocating for the direct regulatory impediment species of this?
00:17Is that the rule that you're now articulating, and it has something to do with being completely locked out of the market?
00:23That's our front-line rule. If the government locks you out of a marketplace or tilts it against you, and you come in to sue to have the playing field leveled, you have standing.
00:32That's our front-line rule. And then, obviously, our second line...
00:35But you see how that's a little bit different than saying if there's a direct regulatory impediment?
00:39That's different than saying you have to be completely locked out of the market.
00:44Well, by direct regulatory impediment, I mean sort of a lockout or, as here, a cap, right?
00:51It's not that we can't sell any fuel at all. It's that we can only sell so much fuel in California and the other 17 states that have adopted these standards,
00:58because the automakers have to make a certain number of cars that don't run on the product we manufacture.
01:04But where does that end? I mean, I guess I'm trying to figure out.
01:07I appreciate your argument that the regulation is on the automakers, and as a result of it being on the automakers,
01:15the fuel producers are going to make less fuel.
01:21But what about the convenience store operators, who are also part of this?
01:26They say there are fewer people stopping into the convenience store as a result.
01:30Are they in your rule or not?
01:32I think that they come much closer to the Department of Commerce.
01:35But, of course, all I need is some...
01:36No, but I'm just trying to understand how your rule works.
01:38So this splits your petitioner, your plaintiff's class here, because convenience store operators are in, they're not completely in your class,
01:47they're not completely locked out of the market, so your direct regulatory impediment rule doesn't have them.
01:53That's right. It's just like competitors standing, right?
01:55You can harm, you're harmed because they under-regulate a competitor.
01:58That regulation can harm lots of other people, people who supply your inputs and all the rest.
02:03You have competitor standing, everybody else has to satisfy predictable facts, Department of Commerce, worth, same thing here.
02:09But the way you...