Elena Kagan Slams Attorney During California Emissions Rule Case: ‘You Didn’t Put On Much Evidence’

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During the Oral Arguments for 'Diamond International, LLC v. EPA', Supreme Court Justice Elena Kagan questioned an attorney on evidence of market interference.

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00:00But we think you haven't shown redressability.

00:02But I think that the reason for that was a combination of two things.

00:05One was what Justice Sotomayor said, that they were mistaken about the end date of the regulation.

00:14The other, honestly, was that you didn't put on much evidence.

00:19And here, too, your sort of common sense inference, it is a common sense inference,

00:24but if it's such a common sense inference, it should be easy to put on evidence.

00:28And here, there wasn't a lot of it.

00:31So, Justice Kagan, I don't think that's fair.

00:35We had an on-point decision from the D.C. Circuit dealing with this very industry, fuel producers.

00:39We had our own declarations.

00:41We had California's expert declarations filed after we brought this case.

00:45So when California intervened, if you look at pages 110 and 115 of the J.A.,

00:49California put in declarations from two CARB experts.

00:52And in both of them, their own experts, these are not statements of the brief.

00:56I agree with you.

00:57I think it would be easy to read those declarations back to California and say,

01:01what do you make of those?

01:03But your side didn't really make that argument.

01:06Well, we pointed to our declarations.

01:08We pointed to California's statement in 2021 at page 66 of the J.A.

01:13saying, these standards are critical, their word, to reducing fuel consumption.

01:17We pointed to EPA's statements in adopting the waiver, saying they need their own standards.

01:21We pointed to the intervener automaker's admission, saying, hey, we've invested a lot in electrification.

01:27If you don't make them meet the same standard, we might be at a, quote, competitive disadvantage.

01:32And I guess my point back, Justice Skiggin, is, look.

01:35I think my point to you is surely if that's all in the record, you deserve to go forward.

01:40Oh, I agree.

01:42I agree.

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