Rocky Mountain Farmers Union v. Richard W. Corey

concurring in part and dissenting in part:

While I agree with the majority’s conclusions concerning the crude oil regulations and preemption under the Clean Air Act, I respectfully dissent from the majority’s *1108 conclusion that the Low Carbon Fuel Standard’s (“LCFS”) ethanol regulations do not facially discriminate against interstate commerce.

I.

Determining whether a regulation facially discriminates against interstate commerce begins and ends with the regulation’s plain language. Discrimination “simply means differential treatment of instate and out-of-state economic interests that benefits the former and burdens the latter.” Or. Waste Sys., Inc. v. Dep’t Env’t Quality of State of Or., 511 U.S. 93, 99 , 114 S.Ct. 1345 , 128 L.Ed.2d 13 (1994). “[T]he purpose of, or justification for, a law has no bearing on whether it is facially discriminatory.” Id. at 100 , 114 S.Ct. 1345 . Only after we find discrimination do we address, in our application of strict scrutiny, whether the reason for the discrimination is sufficiently compelling to justify the regulation. See, e.g., Or. Waste Sys., 511 U.S. at 100-07 , 114 S.Ct. 1345 (examining purported justifications for facially…

Whether global warming is caused by carbon emissions from our industrialized societies is a question for scientists to ponder. Whether, if such a causal relationship exists, the world can fight or retard global warming by implementing taxes or regulations that deter carbon emissions is a question for economists and politicians to decide. Whether one such regulatory scheme, implemented by the State of California, is constitutional under the United States Constitution’s Commerce Clause is the question that we consider in this opinion.

Plaintiffs-Appellees Rocky Mountain Farmers’ Union et al. (“Rocky Mountain”) and American Fuels & Petrochemical Manufacturers Association et al. (“American Fuels”) separately sued Defendant-Appellant California Air Resources Board (“CARB”), contending that the Low Carbon Fuel Standard' (“Fuel Standard”), Cal.Code Regs. tit. 17, §§ 95480-90 (2011), violated the dormant Commerce Clause and was preempted by Section 211(o) of the Clean Air Act, 42 U.S.C. § 7545 (o), known as the federal Renewable Fuel Standard (“RFS”). In three rulings issued in December 2011, the district court held that the Fuel Standard (1) facially discriminated against…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCKY MOUNTAIN FARMERS UNION; No. 12-15131

REDWOOD COUNTY MINNESOTA

CORN AND SOYBEAN GROWERS; D.C. Nos. PENNY NEWMAN GRAIN, INC.; REX 1:09-cv-02234-

NEDEREND; FRESNO COUNTY FARM LJO-GSA

BUREAU; NISEI FARMERS LEAGUE; 1:10-cv-00163-

CALIFORNIA DAIRY CAMPAIGN; LJO-DLB

GROWTH ENERGY; RENEWABLE

FUELS ASSOCIATION; AMERICAN

FUEL & PETROCHEMICAL

MANUFACTURERS ASSOCIATION,

FKA National Petrochemical & Refiners Association; AMERICAN

TRUCKINGS ASSOCIATIONS; CENTER

FOR NORTH AMERICAN ENERGY

SECURITY; THE CONSUMER ENERGY

ALLIANCE,

Plaintiffs-Appellees,

v.

RICHARD W. COREY, in his official capacity as Executive Officer of the California Air Resources Board;

MARY D. NICHOLS; DANIEL

SPERLING; KEN YEAGER; DORENE

D’ADAMO; BARBARA RIORDAN;

JOHN R. BALMES; LYDIA H.

KENNARD; SANDRA BERG; RON ROBERTS; JOHN G. TELLES, in his official capacity as member of the California Air Resources Board; RONALD O. LOVERIDGE, in his official capacity as member of the California Air Resources Board; EDMUND G. BROWN, JR., in his official capacity as…