FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCKY MOUNTAIN FARMERS UNION;

REDWOOD COUNTY MINNESOTA 

CORN AND SOYBEAN GROWERS;

PENNY NEWMAN GRAIN, INC.; REX 

NEDEREND; FRESNO COUNTY FARM 

BUREAU; NISEI FARMERS LEAGUE;

CALIFORNIA DAIRY CAMPAIGN;

GROWTH ENERGY,

Plaintiffs-Appellants,

and

AMERICAN FUEL & PETROCHEMICAL 

MANUFACTURERS ASSOCIATION, 

FKA National Petrochemical & 

Refiners Association; AMERICAN 

TRUCKINGS ASSOCIATIONS; THE 

CONSUMER ENERGY ALLIANCE,

Plaintiffs,

v.

RICHARD W. COREY, in his official 

capacity as Executive Officer of the 

California Air Resources Board; 

ALEXANDER SHERRIFFS; BARBARA 

RIORDAN; HECTOR DE LA TORRE;

JOHN EISENHUT; JOHN GIOIA; MARY 

D. NICHOLS; RON ROBERTS; DANIEL 

No. 17-16881

D.C. Nos.

1:09-cv-02234-

LJO-BAM

1:10-cv-00163-

LJO-BAM
2 ROCKY MOUNTAIN FARMERS UNION V. COREY

SPERLING; SANDRA BERG;JOHN R.

BALMES; PHIL SERNA; DEAN 

FLOREZ; DIANE TAKVORIAN; JUDY A.

MITCHELL, in their official capacities 

as members of the California Air 

Resources Board; GAVIN NEWSOM, 

in his official capacity as Governor 

of the State of California; XAVIER 

BECERRA, in his official capacity as 

Attorney General of the State of 

California,

Defendants-Appellees,

SIERRA CLUB; CONSERVATION LAW 

FOUNDATION; ENVIRONMENTAL 

DEFENSE FUND; NATURAL 

RESOURCES DEFENSE COUNCIL,

Intervenor-Defendants-Appellees.
ROCKY MOUNTAIN FARMERS UNION V. COREY 3

ROCKY MOUNTAIN FARMERS UNION;

REDWOOD COUNTY MINNESOTA 

CORN AND SOYBEAN GROWERS;

PENNY NEWMAN GRAIN, INC.; REX 

NEDEREND; FRESNO COUNTY FARM 

BUREAU; NISEI FARMERS LEAGUE;

CALIFORNIA DAIRY CAMPAIGN;

GROWTH ENERGY,

Plaintiffs,

and

AMERICAN FUEL & PETROCHEMICAL 

MANUFACTURERS ASSOCIATION, 

FKA National Petrochemical & 

Refiners Association; AMERICAN 

TRUCKINGS ASSOCIATIONS; THE 

CONSUMER ENERGY ALLIANCE,

Plaintiffs-Appellants,

v.

RICHARD W. COREY, in his official 

capacity as Executive Officer of the 

California Air Resources Board; 

ALEXANDER SHERRIFFS; BARBARA 

RIORDAN; HECTOR DE LA TORRE;

JOHN EISENHUT; JOHN GIOIA; MARY 

D. NICHOLS; RON ROBERTS; DANIEL 

SPERLING; SANDRA BERG;JOHN R.

BALMES; PHIL SERNA; DEAN 

FLOREZ; DIANE TAKVORIAN; JUDY A.

MITCHELL, in their official capacities 

as members of the California Air 

No. 17-16882

D.C. Nos.

1:09-cv-02234-

LJO-BAM

1:10-cv-00163-

LJO-BAM

OPINION
4 ROCKY MOUNTAIN FARMERS UNION V. COREY

Resources Board; GAVIN NEWSOM, 

in his official capacity as Governor 

of the State of California; XAVIER 

BECERRA, in his official capacity as 

Attorney General of the State of 

California,

Defendants-Appellees,

SIERRA CLUB; CONSERVATION LAW 

FOUNDATION; ENVIRONMENTAL 

DEFENSE FUND; NATURAL 

RESOURCES DEFENSE COUNCIL,

Intervenor-Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Chief Judge, Presiding

Argued and Submitted September 26, 2018

Pasadena, California

Filed January 18, 2019

Before: Dorothy W. Nelson, Ronald M. Gould,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Gould
ROCKY MOUNTAIN FARMERS UNION V. COREY 5

SUMMARY*

Civil Rights

The panel vacated in part and affirmed in part the district 

court’s judgment on the pleadings and Fed. R. Civ. P. 

12(b)(6) dismissal of an action alleging that the previous and 

current versions of California’s Low Carbon Fuel Standard 

violate the Commerce Clause and the “federal structure of 

the Constitution.”

Plaintiffs challenged three iterations of California Air 

Resources Board regulations aimed at accomplishing the 

goal of reducing the rate of greenhouse gas emissions in 

California’s transportation sector: (1) the first Low Carbon 

Fuel Standard, which went into effect in 2011; (2) the Low 

Carbon Fuel Standard, as amended in 2012; and (3) the 2015 

Low Carbon Fuel Standard. The 2011 Low Carbon Fuel 

Standard established a program for the regulation of 

Californian transportation fuels based on a fuels’ “carbon 

intensity.” The 2015 Low Carbon Fuel Standard repealed the 

2011 Low Carbon Fuel Standard and the 2012 amendments.

The panel held that plaintiffs’ challenges to the 2011 and 

2012 versions of the Low Carbon Fuel Standard were made 

moot by their repeal. The panel therefore vacated the district 

court’s judgment as to those challenges and remanded with 

instructions to dismiss those claims.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
6 ROCKY MOUNTAIN FARMERS UNION V. COREY

Affirming the district court’s decision as to the claims 

challenging the 2015 Low Carbon Fuel Standard, the panel 

held that the claims were largely precluded by this Court’s 

prior decision in Rocky Mountain Farmers Union v. Corey, 

730 F.3d 1070 (9th Cir. 2013). The panel held that, 

practically speaking, the controlling substance at the crux of 

the case had not changed since 2011. The panel noted that 

the 2015 Fuel Standard still uses a lifecycle analysis to 

assign credits and deficits, and although some details had 

changed, plaintiffs did not and could not explain how their 

extraterritoriality claims under the Commerce Clause 

functioned differently against the new version of the 

regulation. 

The panel rejected plaintiffs’ assertion that their claims 

were based on the “federal structure of the Constitution” and 

therefore were not controlled by Rocky Mountain. The panel 

held that plaintiffs had not identified which constitutional 

provisions or doctrine outside the Commerce Clause 

governed their structural federalism claims. Moreover, the 

panel held that it was bound by recent Circuit precedent that 

settled whether a program very similar to the Low Carbon 

Fuel Standard was inconsistent with the structure of the 

Constitution. See Am. Fuel & Petrochemical Mfrs. v. 

O’Keeffe, 903 F.3d 903 (9th Cir. 2018). Finally, the panel 

rejected plaintiffs’ claim that the 2015 Low Carbon Fuel 

Standard facially discriminated against interstate commerce 

in its treatment of ethanol and crude oil or that it 

purposefully discriminated against out-of-state ethanol.
ROCKY MOUNTAIN FARMERS UNION V. COREY 7

COUNSEL

Paul J. Zidlicky (argued), Clayton G. Northouse, and Erika 

L. Maley, Sidney Austin LLP, Washington, D.C.; John C. 

O’Quinn, Kirkland & Ellis LLP, Washington, D.C.; John P. 

Kinsey and Timothy Jones, Wagner Jones Helsley PC, 

Fresno, California; for Plaintiffs-Appellants.

M. Elaine Meckenstock (argued), Jonathan Wiener, and 

Myung J. Park, Deputy Attorneys General; Gavin G. 

McCabe, Supervising Attorney General; Robert W. Byrne, 

Senior Assistant Attorney General; Xavier Becerra, 

Attorney General; Office of the Attorney General, Oakland, 

California; Sean H. Donahue, Donahue Goldberg & Weaver

LLP, Washington, D.C.; Joanne Spalding, Sierra Club, 

Oakland, California; David Pettit, Natural Resources 

Defense Council, Santa Monica, California; for DefendantsAppellees.

OPINION

GOULD, Circuit Judge:

In 2013, we decided the first appeal in a long-running, 

complex challenge to California’s Low Carbon Fuel 

Standard (LCFS) under the Commerce Clause in Rocky 

Mountain Farmers Union v. Corey, rejecting some of 

Plaintiffs’ claims and remanding for further proceedings on 

others. Rocky Mountain Farmers Union v. Corey, 730 F.3d 

1070 (9th Cir. 2013) reh’g en banc denied, 704 F.3d 507 (9th 

Cir. 2014), and cert. denied, 134 S. Ct. 2875 (2014) 

(hereinafter Rocky Mountain I). That challenge returns to us 

today. In the intervening years, the LCFS has been repealed 

and replaced, and Plaintiffs’ claims have changed form, but 
8 ROCKY MOUNTAIN FARMERS UNION V. COREY

both the regulations and the claims have the same core 

structure now as they did then. We hold that Plaintiffs’ 

challenges to previous versions of the LCFS have been made 

moot by their repeal, and we affirm the dismissal of their 

remaining claims against the present version of the LCFS as 

largely precluded by our prior decision in Rocky Mountain I. 

To the extent Plaintiffs raise new arguments on this appeal, 

we conclude that they are without merit.

I

A

Since 2006, the California Air Resources Board (CARB) 

has acted under a mandate to reduce California’s rate of 

greenhouse gas emissions in light of the California 

legislature’s finding that “[g]lobal warming poses a serious 

threat to the economic well-being, public health, natural 

resources, and the environment of California.” Cal. Health 

& Safety Code § 38501. The California legislature is rightly 

concerned with the health and welfare of humans living in 

the State of California. These persons may be subjected, for 

example, to crumbling or swamped coastlines, rising water, 

or more intense forest fires caused by higher temperatures 

and related droughts, all of which many in the scientific 

communities believe are caused or intensified by the volume 

of greenhouse gas emissions.1 The California legislators and 

 1 See generally Intergovernmental Panel on Climate Change, Global 

Warming of 1.5 °C (2018), http://www.ipcc.ch/report/sr15/; see also

Coral Davenport, Major Climate Report Describes a Strong Risk of 

Crisis as Early as 2040, N.Y. Times (Oct. 7, 2018), 

https://www.nytimes.com/2018/10/07/climate/ipcc-climate-report2040.html; Seth Bornstein & Frank Jordans, ‘Weirdness Abounds’ as 

World Warms; Scientists Say Record Temps, Fires Made Worse by 
ROCKY MOUNTAIN FARMERS UNION V. COREY 9

regulators who created the CARB regulation of greenhouse 

gas emissions were clearly concerned with such dreadful 

environmental impacts.2 And, whatever else may be said of 

the revolutionary colonists who framed our Constitution, it 

cannot be doubted that they respected the rights of individual 

states to pass laws that protected human welfare, 3 see, e.g.,

The Federalist No. 45 at 289 (James Madison) (Clinton 

Rossiter ed., 2003) (“The powers reserved to the several 

States will extend to all the objects, which, in the ordinary 

course of affairs, concern the lives, liberties, and properties 

of the people; and the internal order, improvement, and 

 Human-Caused Climate Change, Chicago Tribune, Aug. 1, 2018, at 

C12.

2 See S. Rules Comm., A. Floor Bill Analysis on A.B. 32, 2005–2006

Leg., Reg. Sess. (Cal. 2006), http://leginfo.legislature.ca.gov/faces/bill

AnalysisClient.xhtml?bill_id=200520060AB32; (discussing passage of 

a bill to inter alia authorize CARB to regulate greenhouse gas emissions 

from transportation fuels, stating that “global climate change poses a 

serious threat to California’s economic well being, public health, and 

environment if aggressive actions to reduce GHG emissions are not 

taken soon”), Cal. Envtl. Prot. Agency Air Res. Bd., Staff Report: 

Initial Statement of Reasons for Proposed Rulemaking – Proposed ReAdoption of the Low Carbon Fuel Standard ES-1–2 (Dec. 2014), 

https://www.arb.ca.gov/regact/2015/lcfs2015/lcfs15isor.pdf (“The 

primary goal of the LCFS regulation is to reduce the carbon intensity of 

transportation fuels used in California . . . thereby reducing GHG 

emissions . . . .”).

3 Blackstone referred to the traditional authority of the police power 

as the power to ensure “the due regulation and domestic order of the 

kingdom.” 4 William Blackstone, Commentaries *162. Bentham’s work 

on constitutional codes similarly defined the police power as “a system 

of precaution, either for the prevention of crimes or of calamities.” 

3 Jeremy Bentham, The Works of Jeremy Bentham *169 (John Bowring 

ed., 1843) (later cited by Tennessee v. Davis, 100 U.S. 257, 300 (1879)). 

We cannot doubt that the calamities considered in this context are a 

central concern of the states as they wield this traditional power.
10 ROCKY MOUNTAIN FARMERS UNION V. COREY

prosperity of the State.”), and recognized their broad police 

powers to accomplish this goal. See, e.g., Metro. Life Ins. 

Co. v. Massachusetts, 471 U.S. 724, 756 (1985) (“The States 

traditionally have had great latitude under their police 

powers to legislate as ‘to the protection of the lives, limbs, 

health, comfort, and quiet of all persons.’” (quoting 

Slaughter-House Cases, 83 U.S. 36, 62 (1873))); Lewis v. BT 

Inv. Managers, Inc., 447 U.S. 27, 36 (1980) (“[T]he States 

retain authority under their general police powers to regulate 

matters of ‘legitimate local concern,’ even though interstate 

commerce may be affected.”); Huron Portland Cement Co. 

v. City of Detroit, 362 U.S. 440, 442 (1960) (“Legislation 

designed to free [the air] from pollution . . . clearly falls 

within the exercise of even the most traditional concept of 

. . . the police power.”).

We are presented with several versions of the challenged 

CARB regulations that regulate fuel sales in California. This 

case concerns three iterations of CARB regulations aimed at 

accomplishing the goal of reducing the rate of greenhouse 

gas emissions in California’s transportation sector: (1) the 

first LCFS, which went into effect in 2011; (2) the LCFS as 

amended in 2012; and (3) and the LCFS which replaced the 

first LCFS in 2015.

The function of the 2011 and 2012 versions of the LCFS 

was heavily discussed and analyzed in Rocky Mountain I and 

no current factual allegations have disturbed our summary of 

them. See Rocky Mountain I, 730 F.3d at 1078–86 (9th Cir. 

2013). We reaffirm, finding Rocky Mountain I’s conclusions 

binding here. Id. at 1106–07.

In brief, the 2011 LCFS established a program for the 

regulation of Californian transportation fuels based on the 
ROCKY MOUNTAIN FARMERS UNION V. COREY 11

fuels’ “carbon intensity.”4 See Rocky Mountain I, 730 F.3d 

at 1080–81. Parties who sell fuel in California are assessed 

for the carbon intensity of those fuels, and parties who fall 

below the carbon intensity standard gain tradeable credits 

that can be used by parties who are above the carbon 

intensity standard to meet their regulatory obligations. 

CARB assigns carbon intensity differently for different 

kinds of fuels, and the 2012 amendments to the LCFS, while 

retaining this basic structure, changed the precise procedure 

for assigning carbon intensity values to crude oil.

In 2013, after our decision in Rocky Mountain I, a 

decision in California state court based on the state’s 

administrative law required CARB to reconsider the LCFS. 

See POET, LLC v. CARB, 218 Cal. App. 4th 681, 766–67 

(2013) (requiring CARB to “[s]et aside its approval of the 

LCFS”). This led to the currently-effective LCFS (the “2015 

LCFS”) that repealed the 2011 LCFS and, of course, the 

2012 amendments. The method and structure of the 2015 

LCFS is identical to the 2011 LCFS, and it still contains the 

central carbon intensity and lifecycle analysis elements. The 

changes that are material for this appeal are limited to the 

 4 A fuel’s carbon intensity rating reflects the greenhouse gas 

emissions associated with the fuel throughout its total “lifecycle.” 

Rather than measuring carbon released during the fuel’s use, the 

lifecycle analysis examines the environmental impact of a product 

from “cradle to grave” by evaluating the resources consumed and wastes 

discharged during the product’s production, distribution, use, 

maintenance, and disposal. See generally U.S. Dept. of Energy, Ethanol: 

The Complete Energy Lifecycle Picture (March 2007), 

https://www1.eere.energy.gov/vehiclesandfuels/pdfs/program/ethanol_

brochure_color.pdf (providing an overview of the lifecycle analysis 

model).
12 ROCKY MOUNTAIN FARMERS UNION V. COREY

process for assigning carbon intensity values to non-crude 

oil fuels.

The 2011 LCFS gave two different pathways for 

regulated parties to have the carbon intensity of their fuels 

assessed. Under “Method 1,” CARB provided default values 

for different fuels with different production procedures from 

different parts of the country and the world. Rocky Mountain 

I, 730 F.3d at 1082. Regulated parties could also use 

“Method 2,” which provided different options aimed at 

giving a more individualized assessment of a fuel’s carbon 

intensity. Id. The 2015 LCFS abandons the Method 1 

process and assigns an individualized carbon intensity to 

each fuel, streamlining the application process for some 

conventionally produced fuels that CARB had previous 

experience in evaluating. This change means that no part of 

the LCFS now refers to particular regions of origin, as the 

2011 LCFS had. See Rocky Mountain I, 730 F.3d at 1081–

84.

B

The first version of this case began in 2009 and 2010, 

when Plaintiffs-Appellants Rocky Mountain Farmers’ 

Union et al. (“Rocky Mountain”) and American Fuels & 

Petrochemical Manufacturers Association et al. (“American 

Fuels”) separately challenged the 2011 LCFS under the 

Commerce Clause and the Supremacy Clause, bringing Ex 

Parte Young actions against CARB members, California’s 

Governor, and California’s Attorney General seeking 

declaratory and injunctive relief. Rocky Mountain argued 

that the 2011 LCFS was preempted by the Energy 

Independence and Security Act of 2007 (EISA), regulated 

commerce extraterritorially, unduly burdened interstate 

commerce, and discriminated against out-of-state fuel 

interests. American Fuels made the same claims and added 
ROCKY MOUNTAIN FARMERS UNION V. COREY 13

claims that the 2011 LCFS was preempted by the Energy 

Policy Act of 2005 and the federal Renewable Fuels 

Standard (RFS).

The district court granted summary judgment to the 

plaintiffs on Rocky Mountain and American Fuels’s 

Commerce Clause claims and granted Rocky Mountain’s 

motion for a preliminary injunction. See Rocky Mountain 

Farmers Union v. Goldstene (“Rocky Mountain Ethanol”),

843 F. Supp. 2d 1071, 1090, 1093 (E.D. Cal. 2011); Rocky 

Mountain Farmers Union v. Goldstene (“Rocky Mountain

Preemption”), 843 F. Supp. 2d 1042, 1070 (E.D. Cal. 2011);

Rocky Mountain Farmers Union v. Goldstene (“Rocky 

Mountain Crude”), Nos. CV-F-09-2234 LJO DLB, CV-F10-163 LJO DLB, 2011 WL 6936368, at *12–14 (E.D. Cal. 

Dec. 29, 2011). The appeals of these orders were 

consolidated and heard by the Ninth Circuit in Rocky 

Mountain I. 730 F.3d at 1078.

In Rocky Mountain I, we reversed the district court, 

holding that the 2011 LCFS did not facially discriminate 

against interstate commerce in ethanol or crude oil, did not 

regulate extraterritorially, and did not discriminate in 

purpose or effect against crude oil. Id. at 1100, 1103–04, 

1107. We also held that the LCFS permissibly regulated the 

in-state behavior of selling different mixtures of fuel, and 

that the use of lifecycle analysis did not amount to 

discrimination against interstate commerce because it 

disincentivized the purchase of a fuel only to the extent that 

that fuel was relevantly different with respect to California’s 

legitimate interest in curbing greenhouse gas emissions and 

climate change. Id. at 1089–90. Plaintiffs’ petition for 

rehearing en banc was denied, 704 F.3d 507 (9th Cir. 2014), 

as were petitions for a writ of certiorari from both Plaintiffs 
14 ROCKY MOUNTAIN FARMERS UNION V. COREY

and Defendants. See 134 S. Ct. 2875 (2014); Corey v. Rocky 

Mountain Farmers Union, 134 S. Ct. 2884 (2014).

Our panel remanded on the following issues: (1) whether 

the 2011 LCFS ethanol provisions discriminate in purpose 

or in effect, (2) whether the 2011 LCFS ethanol provisions 

unduly burden interstate commerce under Pike v. Bruce 

Church, Inc., 397 U.S. 137 (1970), (3) whether the 2011 and 

2012 LCFS crude oil provisions unduly burden interstate 

commerce under Pike, (4) whether the LCFS is preempted 

by the federal RFS and (5) whether the LCFS is preempted 

by the federal EISA. Rocky Mountain I, 730 F.3d at 1107; 

see also Rocky Mountain Farmers Union v. Goldstene, Nos. 

1:09-cv-2234-LJO-BAM, 1:10-cv-163-LJO-BAM, 2014 

WL 7004725, at *6 (E.D. Cal. Dec. 11, 2014) (hereinafter 

Goldstene) (summarizing the questions the district court 

received on remand).

C

On remand, Plaintiffs’ claims went through a series of 

amendments and decisions to reach their current form. In 

December of 2014, the district court granted in part a motion 

to amend American Fuels’s complaint. This amendment 

resulted in a complaint that also challenged the 2012 

amendments to the LCFS’s crude oil provisions, added a 

“horizontal federalism” aspect to its extraterritoriality claim, 

and eliminated American Fuels’s Pike and federal 

preemption claims. See Goldstene, 2014 WL 7004725, at 

*18.

The district court then further clarified its position by 

granting summary judgment for Defendants on Plaintiffs’ 

extraterritoriality claim against the original LCFS, granting 

a motion to dismiss on Plaintiffs’ extraterritoriality claim 

against the 2012 version of the LCFS, granting summary 
ROCKY MOUNTAIN FARMERS UNION V. COREY 15

judgment for Defendants on Plaintiffs’ facial discrimination 

claims against the original LCFS with respect to ethanol, 

granting summary judgment for Defendants on all of 

Plaintiffs’ discrimination claims against the original LCFS 

and the 2012 version with respect to crude oil, and denying 

a motion to dismiss Plaintiffs’ claim that the original ethanol 

provisions discriminate in purpose and effect. Am. Fuels & 

Petrochemical Mfrs. Ass’n v. Corey, Nos. 1:09-cv-2234-

LJO-BAM, 1:10-cv-163-LJO-BAM, 2015 WL 5096279, at 

*38–39 (Aug. 28, 2015).

The complaints were amended again to reflect the 2015 

version of the LCFS, and the district court heard motions to 

dismiss and motions for judgment on the pleadings. The 

amended complaints alleged that all three versions of the 

LCFS are preempted by federal law, that all three versions 

are impermissible extraterritorial regulations, and that all 

three versions violate the Commerce Clause facially, in 

purpose and effect, and under the Pike balancing test, which 

remained in issue under the claims of Rocky Mountain 

despite prior dismissal in the American Fuels case. The 

district court held that Plaintiffs’ claims against the repealed 

versions of the LCFS were not moot. Nevertheless, it 

granted Federal Rule of Civil Procedure 12(c) motions for 

judgment on the claims precluded by Rocky Mountain I and 

granted 12(b)(6) motions to dismiss on most of the other 

claims. The court denied the motions to dismiss on 

Plaintiffs’ claims that the ethanol provisions of the 2011 and 

2015 versions of the LCFS discriminate in practical effect 

and that they violate Pike. Rather than contest these 

remaining claims, Plaintiffs voluntarily dismissed them, and 

the district court entered a final judgment.

Plaintiffs now appeal the district court’s decision on 

claims challenging the 2015 version of the LCFS, as well as 
16 ROCKY MOUNTAIN FARMERS UNION V. COREY

previous orders deciding the prior motions to dismiss. 

Appellants claim that all three versions of the LCFS violate 

the following constitutional protections:

the Commerce Clause and “the federal structure of 

the Constitution” by regulating extraterritorially.

the Commerce Clause by facially discriminating 

against interstate and foreign commerce in their 

treatment of crude oil and ethanol.

the Commerce Clause by purposefully 

discriminating against interstate and foreign 

commerce in their treatment of crude oil and ethanol.

II

We review legal conclusions concerning mootness de 

novo and factual findings concerning mootness for clear 

error. In re Thorpe Insulation Co., 677 F.3d 869, 879 (9th 

Cir. 2012). We review a district court’s dismissal of a 

complaint under Federal Rule of Civil Procedure 12(b)(6) de 

novo. United States v. Corinthian Colleges, 655 F.3d 984, 

991 (9th Cir. 2011). We review a district court’s entry of 

judgment under Federal Rule of Civil Procedure 12(c) de 

novo. Yakima Valley Mem’l Hosp. v. Washington State 

Dept. of Health, 654 F.3d 919, 925 (9th Cir. 2011).

III

First we examine whether Plaintiffs’ claims against the 

repealed 2011 and 2012 versions of the LCFS are moot. The 

district court held that, in light of a discussion of mootness 

in a footnote in Rocky Mountain I, the repeal or amendment 

of older versions of the LCFS did not render Plaintiffs’ 

claims against those regulations moot. Whatever the status 
ROCKY MOUNTAIN FARMERS UNION V. COREY 17

of Plaintiffs’ claims in 2013, we now hold that no effective 

relief can be provided for these claims, and that they are now 

moot. We vacate the district court’s judgment on them and 

remand with directions to dismiss them as moot.

As noted in Rocky Mountain I, a case is moot “only when 

it is impossible for a court to grant any effectual relief.” 

Rocky Mountain I, 730 F.3d at 1097 n.12 (quoting Decker v. 

Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013)). However, 

“the Supreme Court and our court have repeatedly held that 

a case is moot when the challenged statute is repealed, 

expires, or is amended to remove the challenged language.” 

Log Cabin Republicans v. United States, 658 F.3d 1162, 

1166 (9th Cir. 2011). Where there is nothing left of a 

challenged law to enjoin or declare illegal, further judicial 

action would necessarily be advisory and in violation of the 

limitations of Article III. See, e.g., id. at 1165–66

(describing this doctrine as arising out of the case or 

controversy requirements of Article III); Students for a 

Conservative America v. Greenwood, 378 F.3d 1129, 1131 

(9th Cir. 2004) (“This case is moot . . . because the 

challenged rules have been changed and will not apply in 

future elections.”); Native Vill. of Noatak v. Blatchford, 38 

F.3d 1505, 1514 (9th Cir. 1994) (“Declaratory relief is 

unavailable where [a] claim is otherwise moot . . . .”). To 

test whether subsequent developments have mooted a suit, 

we ask whether the claim could have been brought “in light 

of the . . . statute as it now stands.” Hall v. Beals, 396 U.S. 

45, 48 (1969).

Plaintiffs’ claims arising from the 2011 and 2012 

versions of the LCFS fail this test. The laws challenged are 

no longer in effect, Plaintiffs’ obligations under them have 

been discharged, and it is not possible for the Court to grant 

any effectual relief, as the 2011 and 2012 versions of the 
18 ROCKY MOUNTAIN FARMERS UNION V. COREY

LCFS have been repealed. As such, Plaintiffs are in the same 

boat as the plaintiffs in Log Cabin Republicans, in which we 

said that “[i]f Log Cabin filed suit today seeking a 

declaration that section 654 is unconstitutional or an 

injunction against its application (or both), there would be 

no Article III controversy because there is no section 654.” 

658 F.3d at 1166.

Rocky Mountain I did not hold otherwise when it briefly 

considered whether the 2012 amendments had made the 

Plaintiffs’ 2013 challenge to the crude oil provisions of the 

2011 LCFS moot. The court held that the amendments had 

not mooted Plaintiffs’ claims, because “[c]redits awarded 

based on [carbon intensity values calculated under the 

challenged 2011 Provisions] will carry forward to 

subsequent years and may be used by a regulated party” and 

“[t]he propriety of the scheme under which those credits 

were distributed remains a live controversy.” Rocky 

Mountain I, 730 F.3d at 1097 n.12. This statement reflected 

the fact that, as we were deciding this issue, the 2011 LCFS, 

as partially amended in 2012, was good law and could have 

been subject to any number of declaratory or injunctive 

remedies. Although it is true that credits awarded under 

prior versions of the LCFS could have future effects, it is no 

longer true that the scheme under which those credits were 

distributed remains a live controversy and challenges to it 

can no longer be brought, as the 2011 and 2012 versions 

have been repealed. If the present LCFS inherited any 

constitutional infirmities from its predecessor, these must be 

part of Plaintiffs’ challenge to the law as it currently stands.

Plaintiffs argued to the district court that they could seek 

“the adjustment of the carry-forward credits calculated under 

the prior version of the LCFS” as a remedy to save these 

challenges from mootness. For good reason, Plaintiffs have 
ROCKY MOUNTAIN FARMERS UNION V. COREY 19

since abandoned this claim. As the district court correctly 

held, any such remedy would be barred for Plaintiff 

associations by a lack of associational standing, and barred 

for all Plaintiffs by the Eleventh Amendment. In order to try 

to compensate parties for unconstitutionally low credits or 

unconstitutionally high deficits awarded under prior 

versions of the LCFS, the court would have to determine 

how each party changed its behavior in response and how 

much those changes cost each party, determinations that 

would be impossible without “the participation of individual 

members in the lawsuit.” United Food & Commercial 

Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 

544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert. 

Com’n, 432 U.S. 333, 343 (1977)). Moreover, any such 

relief could only be compensation for a state’s past violation 

of law, which is barred by the Eleventh Amendment. See 

Pennhurst State School & Hospital v. Halderman, 465 U.S. 

89, 105–06 (1984) (“[A]n award of retroactive relief 

necessarily falls afoul of the Eleventh Amendment.”); see 

also Porter v. Jones, 319 F.3d 483, 491 n.7 (9th Cir. 2003) 

(“[P]laintiff may not couch in terms of injunctive and 

declaratory relief a compensatory, backward-looking 

remedy.”).5

The district court’s judgment on all of Plaintiffs’ 

challenges to the 2011 and 2012 versions of the LCFS is 

VACATED with instructions to DISMISS those claims on 

remand. See Log Cabin Republicans, 658 F.3d at 1167 

(citing United States v. Munsingwear, Inc., 340 U.S. 36, 39 

 5 Assuming for sake of argument that we are incorrect in our 

conclusion on mootness, and that the challenges by Plaintiffs to the 2011 

and 2012 versions of the LCFS are not moot, then we would affirm as 

against those challenges for the reasons stated by the majority in Rocky 

Mountain I.
20 ROCKY MOUNTAIN FARMERS UNION V. COREY

(1950)) (describing this procedure as “the ‘established’ 

practice”).

IV

Plaintiffs assert that the 2015 LCFS regulates 

extraterritorially, having amended their claims to include the 

2015 LCFS and an allegation that the LCFS violates the 

federal structure of the Constitution in addition to the 

Commerce Clause. The district court granted Defendants’ 

motion to dismiss on the basis that this claim is precluded by 

Rocky Mountain I. Plaintiffs contend that their appeals in 

the current case include a claim based on the federal 

structure of the Constitution that was not decided in Rocky 

Mountain I. We hold that Plaintiffs’ extraterritoriality 

claims against the 2015 LCFS are precluded by the law of 

the case and by our recent circuit precedent in Am. Fuel & 

Petrochemical Mfrs. v. O’Keeffe, 903 F.3d 903 (9th Cir. 

2018) (hereinafter O’Keeffe).6

A

The law of the case doctrine generally precludes 

reconsideration of “an issue that has already been decided by 

the same court, or a higher court in the identical case.” 

United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 

1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 

1993)). In a circumstance like this, “a judgment of reversal 

 6 On September 12, 2018, the Plaintiffs-Appellants filed a Motion 

to Dispense with Oral Argument, asserting that argument was not needed 

because to the extent the appeal raised issues not governed by the rulings 

in Rocky Mountain I, O’Keeffe resolved those issues. Plaintiffs said they 

disagreed with that ruling, but that it was binding on the court in this 

case. Our panel denied the motion on September 14, 2018, and we 

address all pertinent issues in this opinion. 
ROCKY MOUNTAIN FARMERS UNION V. COREY 21

by an appellate court is an adjudication only of matters 

expressly discussed and decided, which become the law of 

the case in further proceedings on remand and re-appeal.” 

Hansen & Rowland v. C.F. Lytle Co., 167 F.2d 998, 999 (9th 

Cir. 1948). To show that an issue is not controlled by the 

law of the case, parties must show that it was not “decided 

explicitly or by necessary implication” by a prior decision. 

United States v. Garvia-Beltran, 443 F.3d 1126, 1129 (9th 

Cir. 2006) (quoting Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 

438, 441 (9th Cir. 1982)). As a prudential rather than 

jurisdictional doctrine, the law of the case doctrine does not 

apply “if the court is convinced that its prior decision is 

clearly erroneous and would work a manifest injustice.” 

Pepper v. United States, 562 U.S. 476, 506–07 (2011) 

(internal quotation marks and brackets omitted) (quoting 

Agostini v. Felton, 521 U.S. 203, 236 (1997)).

Rocky Mountain I expressly decided Plaintiffs’ 

extraterritoriality claims against the 2011 and 2012 versions 

of the LCFS. Because these claims are now moot, the only 

extraterritoriality claims remaining are those against the 

2015 LCFS. Strictly speaking, Rocky Mountain I did not, 

for obvious reasons, address any claims Plaintiffs may have 

had against the 2015 LCFS. Practically speaking, however, 

the controlling substance at the crux of the case has not 

changed. The 2015 LCFS still uses lifecycle analysis to 

assign credits and deficits, and although some details have 

changed, Plaintiffs do not and cannot explain how their 

extraterritoriality claims under the Commerce Clause 

function differently against the new version of the 

regulation. Moreover, by deciding that California’s use of 

lifecycle analysis “does not control the production or sale” 

of out-of-state fuel and that “California may regulate with 

reference to local harms, structuring its internal markets to 

set incentives for firms to produce less harmful products for 
22 ROCKY MOUNTAIN FARMERS UNION V. COREY

sale in California,” Rocky Mountain I necessarily implied 

that an extraterritoriality challenge to a functionally identical 

regulation would fail. Rocky Mountain I, 730 F.3d at 1104.

We are not convinced that our decision in Rocky 

Mountain I is “clearly erroneous” such that its application 

“would work a manifest injustice.” Pepper, 562 U.S. at 506–

07. Rocky Mountain I examined the LCFS under the test 

provided by Healy, which holds that a regulation is 

impermissibly extraterritorial when “the practical effect of 

the regulation is to control conduct beyond the boundary of 

the state.” Rocky Mountain I, 730 F.3d at 1101 (citing Healy 

v. Beer Inst., 491 U.S. 324, 336 (1989)). By holding that 

California may “regulate with reference to local harms, 

structuring its internal markets to set incentives for firms to 

produce less harmful products for sale in California,” Rocky 

Mountain I properly respected the separate sovereignty of 

the several states. Id. at 1104.

Rocky Mountain I followed a well-worn path of 

precedent. States may seek to influence which products are 

sold in-state, distinguishing impermissible statutes that 

“regulate out-of-state parties directly” from those that 

“regulate[] contractual relationships in which at least one 

party is located in [the regulating state].” Gravquick A/S v. 

Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1224 (9th Cir. 

2003). This is true even where the characteristics of the 

products at market are not at issue. See Ass’n des Eleveurs 

de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 

947–52 (9th Cir. 2013) (holding that a ban on selling foie 

gras created by force-feeding did not discriminate against or 

regulate out-of-state commerce); Pharm. Research & Mfrs. 

of Am. v. Walsh, 538 U.S. 644, 669 (2003) (holding that 

Maine may impose regulatory burdens on drug 

manufacturers who do not have a rebate agreement with the 
ROCKY MOUNTAIN FARMERS UNION V. COREY 23

state). The Commerce Clause also does not treat regulations 

that have upstream effects on how sellers who sell to 

California buyers produce their goods as being necessarily 

extraterritorial. See Minnesota v. Clover Leaf Creamery Co., 

449 U.S. 456, 472 (1981); Exxon Corp. v. Maryland, 

437 U.S. 117, 125–28 (1978). And as C&A Carbone, Inc. v. 

Town of Clarkstown emphasized, local governments are 

empowered to issue “uniform safety regulations” which 

“would ensure that competitors . . . do not underprice the 

market by cutting corners on environmental safety.” 

511 U.S. 383, 393 (1994). In other words, subjecting both 

in and out-of-jurisdiction entities to the same regulatory 

scheme to make sure that out-of-jurisdiction entities are 

subject to consistent environmental standards is a traditional 

use of the State’s police power; it is not an extension of 

“police power beyond its jurisdictional bounds.” Id. The 

LCFS helps California and its citizens by ensuring that outof-state fuels do not benefit in Californian markets by 

“cutting corners” and not being subject to California’s 

regulations on the resulting greenhouse gases.

Rocky Mountain I reflects the commonplace proposition 

that states may regulate to minimize the in-state harm caused 

by products sold in-state, a central aspect of the state 

sovereignty protected by the Constitution. See Clover Leaf 

Creamery Co., 449 U.S. at 471–74; Sam Francis Found. v. 

Christies, Inc., 784 F.3d 1320, 1324 (9th Cir. 2015) (en 

banc) (commenting that Rocky Mountain I “concerned state 

law[] that regulated in-state conduct with allegedly 

significant out-of-state practical effects”); Brannon P. 

Denning, Extraterritoriality and the Dormant Commerce 

Clause: A Doctrinal Post-Mortem, 73 La. L. Rev. 979, 998–

99 (2013) (noting that a contrary expansive view of the 

Healy doctrine “could have become a significant restriction 

on state regulatory power” if the Court had adopted it). The 
24 ROCKY MOUNTAIN FARMERS UNION V. COREY

LCFS does this without crossing into impermissible interstate regulation. See Edgar v. MITE Corp., 457 U.S. 624, 

642–43 (1982) (holding an state statute conflicted with the 

Commerce Clause because it regulated transactions in other 

states); Nat’l Solid Wastes Mgmt. Ass’n v. Meyer, 63 F.3d 

652, 653–54 (7th Cir. 1995) (holding a state statute violated 

the Commerce Clause because it effectively required other 

states to adopt similar regulations); Healy, 491 U.S. at 331–

39 (holding that a state statute violated the Commerce 

Clause because it had the practical effect of establishing 

scale of prices for use in other states); Brown-Forman 

Distillers Corp. v. New York State Liquor Authority, 

476 U.S. 573 (1986) (same); Baldwin v. G.A.F. Seelig, Inc., 

294 U.S. 511, 521 (1935) (same).

Finally, we squarely reject Plaintiff-Appellants’ 

arguments that California’s interest in the LCFS is merely a 

concern for the environmental harms that are properly 

subject to the police power of other states rather than of 

California. As we held in Rocky Mountain I, the LCFS was 

enacted pursuant to California’s view that “[g]lobal warming 

poses a serious threat to the economic well-being, public 

health, natural resources, and the environment of 

California.” Cal. Health & Safety Code § 38501(a). 

California did not enact the LCFS because it thinks that it is 

the state that knows how best to protect Iowa’s farms, 

Maine’s fisheries, or Michigan’s lakes. California’s interest 

in the lifecycle of the fuels used by its consumers arises from 

a concern for the effects of the production and use of these 

fuels on California’s own air quality, snowpack, and 

coastline. Here, the regulated parties, the regulated 

transactions, and the harms California intended to prevent 

are all within the state’s borders, making the LCFS a classic 

exercise of police power. We cannot say that California is 

doing anything other than legislating “with reference to its 
ROCKY MOUNTAIN FARMERS UNION V. COREY 25

own jurisdiction” in promulgating the LCFS. Bonaparte v. 

Appeal Tax Court of Balt., 104 U.S. 592, 594 (1881).

B

Having previously lost on their Commerce Clause 

argument in Rocky Mountain I, Plaintiffs now advance their 

new constitutional argument, contending that their claims 

are based on the “federal structure of the Constitution” and 

are not controlled by Rocky Mountain I. Plaintiffs have not 

identified which constitutional provisions or doctrine 

outside the Commerce Clause they believe govern their 

structural federalism claims, if any do. However, our panel 

need not linger on whether the Constitution could support 

such a claim, because we are bound by recent circuit 

precedent that has settled whether a program very similar to 

the LCFS is inconsistent with the structure of the 

Constitution. See O’Keeffe, 903 F.3d at 916–17. The 

O’Keeffe court held that “irrespective of its constitutional 

basis, any such claim is necessarily contingent upon a 

finding that the [regulating state’s] program regulates and 

attempts to control conduct that occurs in other states.” Id.

(quoting Goldstene, 2014 WL 7004725, at *13–14). As 

discussed above, we settled this precise question for the 

LCFS in Rocky Mountain I, and O’Keeffe is not materially 

distinguishable from our current case.

There is simply no reason to search beyond the 

Commerce Clause for the Constitution’s limits on the ability 

of states to affect interstate commerce. While the Supreme 

Court has frequently instructed us on the general principles 

that “all States enjoy equal sovereignty,” Shelby County, 

Ala. v. Holder, 570 U.S. 529, 534 (2013), and that states may 

not “regulate and control activities wholly beyond [their] 

boundaries,” Watson v. Emp’rs Liab. Assurance Corp., 

348 U.S. 66, 70 (1954), Commerce Clause jurisprudence is 
26 ROCKY MOUNTAIN FARMERS UNION V. COREY

the relevant application of those general principles to this 

context. The states, in forming the Union, “reserve[d] . . . a 

substantial portion of the Nation’s primary sovereignty,” 

and, because of this, constitutional restrictions on the police 

power of the states should not be lightly inferred. Alden v. 

Maine, 527 U.S. 706, 714 (1999). Our federalism doctrine 

already has one “quagmire” of doctrine, independent of the 

constitutional text, concerned with the effects of state 

regulation on interstate commerce. West Lynn Creamery v. 

Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring). We 

should decline to create another.

The district court’s decision as to Plaintiffs’ 

extraterritoriality claims against the 2015 LCFS is 

AFFIRMED.

V

Plaintiffs contend for a second time that the LCFS 

facially discriminates against interstate commerce in its 

treatment of ethanol and crude oil, having amended their 

claims to include the 2015 LCFS. The district court 

concluded that Plaintiffs’ claims against the 2015 LCFS 

should be dismissed based on Rocky Mountain I, and we 

agree.

Rocky Mountain I rejected facial discrimination 

challenges to the 2011 LCFS, holding that the “lifecycle 

analysis used by CARB, including the specific factors to 

which Plaintiffs object, does not discriminate against out-ofstate commerce” and that CARB’s decision to distinguish 

between different fuels reflected its “expert regulatory 

judgment” in aiming to produce “accurate carbon intensity 

values.” 730 F.3d at 1093, 1096. These features remain in 

the 2015 LCFS, and rather than contending that the new law 

discriminates in some different way, Plaintiffs concede that 
ROCKY MOUNTAIN FARMERS UNION V. COREY 27

their facial discrimination challenges are based on the same 

premises. In fact, these claims have only been weakened by 

intervening regulatory developments. The original LCFS 

appealed to default pathways with regional characteristics, 

which were a major source of the facial discrimination 

claims in Rocky Mountain I. See id. at 1096. The 2015 

LCFS eliminates the regional pathways and gives every 

alternative fuel an individualized assessment, making no 

default assumptions based on region of origin. 2015 LCFS 

§ 95488(b), (c). It is not surprising then that Plaintiffs 

concede that their facial discrimination claims are controlled 

by Rocky Mountain I.

Because ruling in favor of Plaintiffs on their facial 

discrimination claim would require rejecting Rocky 

Mountain I on issues it expressly reached and decided, the 

law of the case prevents us from endorsing Plaintiffs’ claims 

against the 2015 LCFS unless we believe that “[our] prior 

decision is clearly erroneous and would work a manifest 

injustice.” Pepper, 562 U.S. at 506–07. As we do not, we 

affirm the district court’s dismissal.

As Rocky Mountain I reflects, the Commerce Clause 

respects both the concerns of the national marketplace and 

the central value of local autonomy in our federal system. 

See Rocky Mountain I, 730 F.3d at 1087. These principles 

require us to take into account the potential indirect effects 

of a state’s regulation of in-state activities insofar as they 

may affect out-of-state commerce. However, the lens 

through which we view this analysis must reflect the fact that 

a state’s ability to control its internal markets and combat 

local harms is squarely within its traditional police power. 

Our Commerce Clause jurisprudence reflects the fact that 

“the Framers’ distrust of economic Balkanization was 

limited by their federalism favoring a degree of local 
28 ROCKY MOUNTAIN FARMERS UNION V. COREY

autonomy.” Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 

338 (2008) (examining the history and rationale for the 

Commerce Clause). Rocky Mountain I was correct to hold 

that the LCFS was permissible local regulation under this 

balance of considerations.

State autonomy in the regulation of economic and social 

affairs is central to our system because of the recognized role 

states have as laboratories, trying “novel social and 

economic experiments without risk to the rest of the 

country.” Rocky Mountain I, 730 F.3d at 1087 (citing New 

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) 

(Brandeis, J., dissenting)); see also Reeves, Inc. v. Stake, 

447 U.S. 429, 441 (1980) (arguing that in light of State 

experimentation in policy “[a] healthy regard for federalism 

and good government renders us reluctant” to strike down a 

state program under the dormant Commerce Clause). 

Because any meaningful regulation of in-state commerce 

may have indirect but significant interstate impacts, we 

should be reluctant to subject states to unwarranted scrutiny 

under the Commerce Clause for fear that we will frustrate 

“the theory and utility of our federalism” by restricting the 

ability of the states to “perform their role as laboratories for 

experimentation . . . where the best solution is far from 

clear.” United States v. Lopez, 514 U.S. 549, 581 (1995) 

(Kennedy, J., concurring).

California has attempted to address a vitally important 

environmental issue with vast potential consequences. 

O’Keeffe, 903 F.3d at 913 (citing Massachusetts v. EPA,

549 U.S. 497, 522–23 (2007)) (recognizing that “[i]t is well 

settled that states have a legitimate interest in combating the 

adverse effects of climate change on their residents.”). It 

seems clear beyond dispute that potential climate change 

poses one of the most difficult challenges facing all 
ROCKY MOUNTAIN FARMERS UNION V. COREY 29

civilizations worldwide for the twenty-first century. By 

recognizing emissions that occur throughout the lifecycle of 

different fuels, California has offered a potential solution to 

the perverse incentives that would otherwise undermine any 

attempt to assess and regulate the carbon impact of different 

fuels. See Rocky Mountain I, 730 F.3d 1081. This 

experiment cannot succeed without the ability to 

differentiate the different production processes and power 

generation that are used to produce those fuels. Moreover, 

the value of California’s experimentation is reinforced by the 

fact that other states can and will follow suit by using any 

lawful procedure that proves effective as a model. That is 

what happened in the Oregon Clean Fuels Program. Id. at 

907–10.

The Constitution does not require California to shut its 

eyes to the fact that some ethanol is produced with coal and 

other ethanol is produced with natural gas because these 

kinds of energy production are not evenly dispersed across 

the country or because other states have not chosen to 

regulate the production of greenhouse gases. If the states are 

to remain a source of “innovative and far-reaching statutes” 

that “supplemen[t] national standards,” they must be 

permitted to submit the goods and services sold within their 

borders to certain environmental standards without having 

thereby discriminated against interstate commerce from 

states with lower local standards. FERC v. Mississippi, 456 

U.S. 742, 789 (1982) (O’Connor, J., concurring in part and 

dissenting in part).

The district court’s decision as to Plaintiffs’ facial 

discrimination claims against the 2015 LCFS is 

AFFIRMED.
30 ROCKY MOUNTAIN FARMERS UNION V. COREY

VI

We previously remanded to the district court in Rocky 

Mountain I on the Plaintiffs’ claim that the LCFS 

purposefully discriminates against out-of-state ethanol. The 

district court dismissed this claim, finding that “Plaintiffs 

ma[de] no meaningful effort to differentiate the factual and 

legal bases of their claims concerning the Original LCFS’s 

ethanol provisions . . . and the bases of their pending claim 

that the 2015 LCFS’s ethanol provisions have a 

discriminatory purpose.” We agree and affirm.

In Rocky Mountain I, we left open the possibility that 

Plaintiffs might have been able to show that the LCFS’s 

treatment of carbon intensity, although it reflected facially 

permissible differences between different kinds of fuels, was 

actually enacted to prop up local fuel interests. Rather than 

take advantage of the opportunity to develop this claim on 

remand, however, Plaintiffs rely on the same basic set of 

facts and alleged statements of bias that we heard in Rocky 

Mountain I. As the district court found, “Plaintiffs have not 

pointed to any portion of the LCFS’s legislative history that 

the Ninth Circuit did not consider.”

Although we declined to foreclose Plaintiffs’ purposeful 

discrimination claim, the district court is correct that “the 

logic and record underlying all of Plaintiffs’ claims against 

the ethanol provisions . . . has not changed.” The only new 

material is a 2009 CARB press release that the district court 

correctly held was a permissible “economic defense of a 

[regulation] genuinely proposed for environmental reasons.” 

Rocky Mountain I, 730 F.3d at 1100 n.13 (citing Minnesota 

v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981) 

(“We will not invalidate a state statute under the Equal 

Protection Clause merely because some legislators sought to 
ROCKY MOUNTAIN FARMERS UNION V. COREY 31

obtain votes for the measure on the basis of its beneficial side

effects on state industry.”)).

As we noted in Rocky Mountain I, “[t]he party 

challenging a regulation bears the burden of establishing that 

a challenged regulation has a discriminatory purpose or 

effect under the Commerce Clause.” 730 F.3d at 1097 (citing 

Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)). This 

burden is all that much higher to meet in the face of our 

holding that the structure of the LCFS does not show 

evidence of discrimination. Under the LCFS, the relative 

fate of in-state and out-of-state entities depends entirely on 

the environmental properties of different fuel production and 

transport processes. If the Midwest were to undergo a green 

revolution in its energy production, the LCFS would act as a 

competitive drag on California energy producers. In fact, 

Rocky Mountain I recognized that it had already done so with 

respect to portions of the market. See, e.g., Rocky Mountain 

I, 730 F.3d at 1084 (“The individualized pathway with the 

lowest carbon intensity was achieved by a Midwest producer 

. . .[and] [t]he default pathway with the lowest carbon 

intensity is . . . for Brazilian sugarcane ethanol . . . .”).

In light of these facts about the LCFS’s design, Plaintiffs 

do not meet their burden of showing a discriminatory 

purpose. Plaintiffs do not advance any evidence concerning 

the purpose of the new regulation, the only law now subject 

to challenge. Plaintiffs’ arguments rely primarily on 

California’s motivations for passing the different versions of 

the LCFS that were applicable in 2009 and 2010. This is 

fatal to their case. In both its design and its legislative 

justifications, the LCFS is a regulation aimed at salient 

environmental differences between different types of fuels, 

differences which genuinely reflect legitimate state interests. 

We reject the bald suggestion that the California LCFS is 
32 ROCKY MOUNTAIN FARMERS UNION V. COREY

disguised economic protectionism. Instead, we reaffirm the 

conclusions that were set forth in part VI of Rocky Mountain 

I because those conclusions remain pertinent to the claims 

now presented:

The California legislature has determined 

that the state faces tremendous risks from 

climate change. With its long coastlines 

vulnerable to rising waters, large population 

that needs food and water, sizable deserts that 

can expand with sustained increased heat, 

and vast forests that may become tinderboxes 

with too little rain, California is uniquely 

vulnerable to the perils of global warming. 

The California legislature determined that 

GHG emissions from the production and 

distribution of transportation fuels contribute 

to this risk, and that those emissions are 

caused by the in-state consumption of fuels. 

Whether or not one agrees with the science 

underlying those views, those determinations 

are permissible ones for the legislature to 

make, and the Supreme Court has recognized 

that these risks constitute local threats. See

Massachusetts, 549 U.S. at 522.

To combat these risks, the California 

legislature and its regulatory arm CARB 

chose to institute a market-based solution that 

recognizes the costs of harmful carbon 

emissions. For any such system to work, two 

conditions must be met. First, the market 

must have full and accurate information 

about the real extent of GHG emissions. 

Second, the compliance costs of entering the 
ROCKY MOUNTAIN FARMERS UNION V. COREY 33

market must not be so great as to prevent 

participation. Plaintiffs attack the lifecycle 

analysis and default pathways that fulfill 

these conditions, relying on archaic 

formalism to prevent action against a new 

type of harm. It has been sagely observed by 

Justice Jackson that the constitutional Bill of 

Rights is not a “suicide pact.” See 

Terminiello v. City of Chicago, 337 U.S. 1, 

37 (1949) (Jackson, J., dissenting). Nor is the 

dormant Commerce Clause a blindfold. It 

does not invalidate by strict scrutiny state 

laws or regulations that incorporate state 

boundaries for good and non-discriminatory 

reason. It does not require that reality be 

ignored in lawmaking.

California should be encouraged to 

continue and to expand its efforts to find 

a workable solution to lower carbon 

emissions, or to slow their rise. If no such 

solution is found, California residents 

and people worldwide will suffer great 

harm. We will not at the outset block 

California from developing this innovative, 

nondiscriminatory regulation to impede 

global warming. If the Fuel Standard works, 

encouraging the development of alternative 

fuels by those who would like to reach the 

California market, it will help ease 

California's climate risks and inform other 

states as they attempt to confront similar 

challenges.

730 F.3d at 1106–07.
34 ROCKY MOUNTAIN FARMERS UNION V. COREY

These potential risks to the people living in California 

have only intensified in the past several years. Consider that 

in the past year California saw its forest fires threat increase 

in scope, intensity, duration, and damages, caused in part by 

the extensive droughts throughout the state. See, e.g., 

Madison Park, California Fire Explodes in Size, Is 

Now Largest in State History, CNN.com (Aug. 7, 

2018), https://www.cnn.com/2018/08/06/us/california-fires/

index.html. California also saw more powerful storms 

hitting its coastlines. See, e.g., Rong-Gong Lin II, Hurricane 

Rosa Poses Risk of Flash Floods to Eastern California, 

Las Vegas, Arizona, LATimes.com (Sep. 29, 2018), 

http://www.latimes.com/local/lanow/la-me-ln-rain-20180929-

story.html.

The district court’s decision as to Plaintiffs’ purpose and 

effect discrimination claims against the 2015 LCFS is 

AFFIRMED.

VII

The district court’s decision as to the Plaintiffs’ 

challenges to the 2015 LCFS is AFFIRMED. We 

VACATE its judgment as to the challenges to the 2011 and 

2012 versions of the LCFS and REMAND with instructions 

to dismiss them as moot.

Costs are awarded to the Defendants.