Full opinion text
ORDER ON RMFU PLAINTIFFS’ SUMMARY ADJUDICATION MOTION (Doc. Ill) ORDER ON DEFENDANT’S RENEWED FED. R. CIV. P. 56(D) MOTION (Doc. 172) ORDER ON RMFU PLAINTIFFS’ PRELIMINARY INJUNCTION MOTION (Doc. 115) ORDER ON RMFU PLAINTIFFS SUMMARY ADJUDICATION MOTION (Doc. Ill) ORDER ON DEFENDANT’S RENEWED FED. R. CIV. P. 56(D) MOTION (Doc. 172) ORDER ON RMFU PLAINTIFFS’ PRELIMINARY INJUNCTION MOTION (Doc. 115) LAWRENCE J. O’NEILL, District Judge. Introduction Plaintiffs Rocky Mountain Farmers Union, Redwood County Minnesota Corn and Soybean Growers, Penny Newman Grain, Inc., Fresno County Farm Bureau, Nisei Farmers League, California Dairy Campaign, Rex Nederend, Growth Energy and the Renewable Fuels Association (collectively “Plaintiffs” or “Rocky Mountain Plaintiffs”) seek summary judgment pursuant to Fed.R.Civ.P. 56 and an order enjoining enforcement of California’s Low Carbon Fuel Standard, CaLCode Regs. tit. 17, §§ 95480-95490 (“LCFS”), regulations promulgated by defendant California Air Resource Board (“CARB”) to implement provisions of California Assembly Bill 32 (“AB 32”), California’s Global Warming Solutions Act of 2006, Cal. Health & Saf. Code, § 38500 et seq. Rocky Mountain Plaintiffs argue that the LCFS violates the Commerce Clause, U.S. Const, art. I, § 8, cl. 3 and is preempted by federal law. In this summary judgment motion, the Rocky Mountain Plaintiffs argue that the LCFS fails as a matter of law because it: (1) impermissibly discriminates against out-of-state corn ethanol; (2) impermissibly regulates commerce and the channels of interstate commerce; (3) excessively burdens interstate commerce without producing local benefits; and (4) is preempted by the Energy Independence and Security Act of 2007 (“EISA”). CARB argues that the Rocky Mountain Plaintiffs’ motion improperly and prematurely seeks to adjudicate fact-based issues. By separate motion, CARB moves to deny this motion pursuant to Fed. R.Civ.P. 56(d) as premature, because the parties have conducted only limited discovery, and as a sanction for the Rocky Mountain Plaintiffs’ failure to produce certain requested and court-ordered discovery. Moreover, CARB contends that the LCFS is authorized by 42 U.S.C. § 7545(c)(4)(B) (“Section 211(c)(4)(B)”), precluding Plaintiffs’ preemption claim. Similarly, CARB argues that Section 211(c)(4)(B) authorizes California to violate the dormant Commerce Clause. Finally, Defendants argue that the LCFS neither violates the Commerce Clause nor is preempted by EISA as a matter of law and that the Rocky Mountain Plaintiffs lack standing to raise a preemption claim. Having considered the parties’ arguments, exhibits, and relevant case law, this Court finds that the LCFS impermissibly discriminates against out-of-state corn ethanol and impermissibly regulates extraterritorially in violation of the dormant Commerce Clause and its jurisprudence. Accordingly, the Rocky Mountain Plaintiffs’ summary judgment motion is GRANTED in part. On its preemption claim, this Court finds that the Rocky Mountain Plaintiffs have failed to establish the appropriate standard of review. Accordingly, summary judgment is DENIED without prejudice on that issue. Because this Court’s conclusions are based on arguments that are not subject to Defendants Fed.R.Civ.P. 56(d) motion, this Court DENIES that motion as moot. This Court further finds that because the Rocky Mountain Plaintiffs have established a likelihood of success on the merits of their Commerce Clause claim, and raise serious questions related to their preemption claim, likelihood of irreparable harm, and the balance of the equities so tips in their favor, this Court GRANTS the Rocky Mountain Plaintiffs’ preliminary injunction motion and ENJOINS enforcement of the LCFS during the pendency of this litigation. Background Introduction In enacting the Global Warming Solutions Act of 2006, AB 32, the California Legislature found, inter alia: “Global warming poses a serious threat to the economic well-being, public health, natural resources, and the environment of California.” Cal. Health & Saf.Code, § 38501. AB 32 set the goal of reducing green house gas (“GHG”) emissions in California to 1990 levels by the year 2020. To attain these goals, AB 32 charged CARB to develop and implement regulations in a number of areas. In January 2007, California’s Governor issued Executive Order S-01-07 (“Executive Order”), setting a statewide goal to “reduce the carbon intensity of California’s transportation fuels by at least 10 percent by 2020.” In the Executive Order, the Governor called on CARB to “determine if [a low carbon fuel standard] can be adopted as a discrete early action measure pursuant to AB 32.” Id. In June 2007, CARB adopted the low carbon fuel standard (“LCFS”) as an early action measure. Public workshops on the issue and formal rule-making procedures followed, culminating in the final adoption of the regulation in April 2010. Cal.Code Regs. tit. 17, §§ 95480-95490. LCFS Plaintiffs challenge the LCFS regulations in this action. The purpose of the LCFS is “to implement a low carbon fuel standard, which will reduce greenhouse gas emissions by reducing the full fuel-cycle, carbon intensity of the transportation fuel used in California.” LCFS § 95480. The LCFS was “designed to reduce California’s dependence on petroleum” and “to stimulate and the production and use of alternative, low-carbon fuels in California.” CARB, Final Statement of Reasons (“FSOR”) at 457; FSOR at 461 (“One of the key advantages of the LCFS ... is that it reduces our dependence on foreign oil.”). In preparing the LCFS, CARB identified several “impacts” the regulation would have, including: Biofuels will displace some percent of petroleum-based transportation fuels. Reducing the volume of transportation fuels that are imported from other states will reduce foreign imports of oil into the U.S. The biorefineries to be built in the States will provide needed employment, an increased tax base for the States, and value added to the biomass used as feedstock. These benefits will be more important in rural areas of the State that are short on employment but rich in natural resources. Displacing important transportation fuels with biofuels produced in the State keeps more money in the States. FSOR at 479. CARB estimated that under the LCFS, “[u]p to eighteen cellulosic ethanol and six corn ethanol plants could be built [in California] by 2020 with a total annual capacity of 1.2 billion gallons.” FSOR at 419. “The estimated capital investment for these new businesses is approximately $8.5 billion ...” FSOR at 420. CARB estimates that the LCFS will reduce emissions from the transportation sector by about 16 million metric tons in 2020. CARB, Initial Statement of Reasons (“ISOR”) at ES-1. The LCFS regulates transportation fuels that are “sold, supplied, or offered for sale in California” and “any person, who as a regulated party ... is responsible for a transportation fuel in a calendar year.” LCFS § 95480.1(a). California’s LCFS focuses on the “carbon intensity” of fuels to estimate emissions related to a fuel’s life-cycle, including GHGs emitted when the fuel is extracted, refined, and transported to California. It establishes different standards for gasoline and diesel fuels, and provides for a gradual implementation of the fuel standards for both, with a goal to reduce the carbon intensity of fuel by 10% by the year 2020. See LCFS § 95482(b), (c). The LCFS requires providers to comply with reporting requirements which obligate them to identify for fuels sold or imported into California, the type of fuels, whether the fuel is blended, and the fuel’s production process. Providers are required to calculate the “carbon intensity” of each fuel component to determine their score. LCFS § 95486(a), and must compare it with the statewide average carbon intensity level for that year. If a party’s score is below the statewide average level, the party may generate credits, provided it has obtain credit-generation approval by CARB. One obtains and maintains approval depending on how that party produces, ships, delivers and distributes its fuels from the location where the fuel is produced to where it ends up in California. LCFS § 95484(d)(2). If the party’s carbon intensity score is above the statewide average level, the party will generate deficits, which must be canceled either by retiring accumulated credits or purchasing credits from others. LCFS § 95485. Reductions in the average carbon intensity were mandated to begin in 2011, with the reduction requirement increasing through the year 2020. Carbon Intensity “Carbon intensity is not an inherent chemical property of a fuel, but rather it is a reflective of the process in making, distributing, and using that fuel.” FSOR at 951. The “LCFS contains no requirements that dictate the exact composition of compliant transportation fuels.” FSOR at 442. The LCFS does “not set[] a fuel standard,” and it does not “establish any motor-vehicle specifications.” FSOR at 439, 442. A gallon of ethanol made from corn grown and processed in the Midwest will, under a microscope or other analytical device, look identical in every material way to a gallon of ethanol processed from sugar cane grown in Brazil. Both samples of ethanol will have the same boiling point, the same molecular composition, the same lower and upper limits of flammability-in other words, both will have identical physical and chemical properties because both products consist of 100% ethanol. On the other hand, corn ethanol from the Midwest will have different carbon intensity than the sugar cane ethanol from Brazil. ISOR V-30. Carbon intensity is defined as “the amount of lifecycle greenhouse gas emissions, per unit of energy of fuel delivered, expressed in grams of carbon dioxide per megajoule. LCFS § 95481(a)(ll). “Life-cycle greenhouse gas emissions” are defined as the: aggregate quantity of greenhouse gas emissions (including direct emissions and significant indirect emissions such as significant emissions from land use changes), as determined by the Executive Officer, related to the full fuel life-cycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential. LCFS § 95481(a)(28). The lifecycle analysis “includ[es] all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of finished fuel to the ultimate consumer.” LCFS § 95481(a)(28). In short, carbon intensity is an estimate of emissions related to a fuel’s lifecycle that focuses on GHGs emitted when the transportation fuel is extracted, refined, and transported to California. CARB-Assigned Corn Ethanol Carbon Intensity Values The LCFS has assigned carbon intensity scores for gasoline and gasoline substitutes, embodied in the Table 6 of LCFS § 95486(b), titled “Carbon Intensity Look-up Table for Gasoline and Fuels that Substitute for Gasoline” (“Table 6”). CARB, through Table 6, assigns different carbon intensity scores to different gasoline and gasoline substitutes, including gasoline, ethanol from corn, ethanol from sugar cane, compressed natural gas, liquified natural gas, electricity, and hydrogen. These carbon intensity values set a 2010 baseline carbon intensity value to each of the fuels and pathways. Within the “ethanol from corn” section, more than a dozen “pathways” are identified, each assigned a carbon intensity value. Numerous distinctions are drawn among different categories of corn ethanol producers. Plaintiffs argue that the LCFS discriminates against out-of-state ethanol producers on its face, because the LCFS assigns more favorable carbon intensity values to California corn-derived ethanol than to Midwest corn-derived ethanol. The relevant section of Table 6 assigns the following values to the different corn-ethanol pathways: Pathway Description_Carbon Intensity Values (gCQ2e/MJ) Land Use or Other _Direct Emissions Indirect Effect_Total Midwest Average; 80% Dry Mill; 20% 69.40 30 99.40 Wet Mill; Dry DGS_ California average; 80% Midwest Aver- 65.66 30 95.66 age; 20% California, Dry Mill; Wet DGS; NG_ California; Dry Mill; Wet SGS; NG 50.70_30_80.70 Midwest; Dry Mill; Dry DGS, NG_68.40_30_98.40 Midwest; Wet Mill, 60% NG, 40% Coal 75.10_30_105.10 Midwest; Wet Mill, 100% NG_64,52_30_94,52 Midwest; Wet Mill, 100% Coal_90,99_30_120,99 Midwest; Dry Mill, Wet, DGS_60.10_30_90,10 California; Dry Mill; Dry DGS, NG_58.90_30_88.90 Midwest; Dry Mill; Dry DGS, 80% NG; 63.60 30 93.60 20% Biomass_ Midwest; Dry Mill, Dry DGS; 80% NG; 56.80 30 86.80 20% Biomass__ California; Dry Mill, Dry DGS; 80% NG; 54.20 30 84.20 20% Biomass__ California; Dry Mill; Wet DGS; 80% NG; 47.44 30 77.44 20% Biomass_ Customized Carbon Intensity Values and Pathways In addition to the default assigned values contained in Table 6, CARB provides two methods for a facility to apply for a customized total carbon intensity value. See LCFS § 95486(c), (d). Under these mechanisms — named Method 2A and Method 2B in the LCFS — a facility may show that it has more efficient equipment or uses cleaner electricity to gain an individualized carbon intensity value. Under these methods, a facility may also propose its own pathway. “Producers whose energy use data are different from the values used in the development of the fuel pathways or producers whose process deviates substantially from that of the pathways represented in [Table 6] can propose their own pathways according to Methods 2A and 2B.” FSOR at 508. CARB submits that to date, 44 Midwest corn ethanol facilities have registered for pathways in Table 6, with 25 indicating that they can produce ethanol lower than the 2010 baseline assigned in Table 6. Five Midwest corn ethanol facilities have applied under Method 2A and Method 2B, with a total of 22 pathways, all of which tentatively have been granted a rating lower than the value for the 2010 baseline for that pathway. Moreover, to date, three facilities that are Midwest; Dry Mill, Dry DGS, NG have applied under Method 2A for an individualized carbon intensity value, and tentatively have been given a value lower than the 2010 baseline for California gasoline. Judicial Notice, Objections, and Consideration of Evidence and Arguments In addition to the pending motion, the parties have submitted requests for judicial notice, objections to evidence submitted, motions to strike, and other miscellany. Moreover, this Court has received multiple amici curiae briefs. This Court carefully reviewed and considered the record, including all evidence, arguments, points and authorities, declarations, testimony, statements of undisputed facts and responses thereto, objections and other papers filed by the parties. Omission of reference to evidence, an argument, document, objection or paper is not to be construed to the effect that this Court did not consider the evidence, argument, document, objection or paper. This Court thoroughly reviewed, considered and applied the evidence it deemed admissible, material and appropriate for summary judgment. This Court does not rule on objections in a summary judgment context, unless otherwise noted. Moreover, this Court will not address the request for judicial notice specifically, but notes the following applicable standards. To be judicially noticeable, a fact must not be subject to a reasonable dispute because it must be either generally known within the territorial jurisdiction of the court or “capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. “Judicial notice is appropriate for records and reports of administrative bodies.” United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008). This Court may not take judicial notice, however, of documents filed with an administrative agency to prove the truth of the contents of the documents. The comments made by third parties that are included in the ISOR or FSOR are subject to hearsay objections, and do not rise to the “high degree of indisputability” required for judicial notice for their truth. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir.2006) (citing Fed. R.Evid. 201 advisory committee’s note). If cited, these statements may be considered for their existence, but not their truth. Id. In addition, this Court takes judicial notice of public records not subject to reasonable dispute. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1354-55 (7th Cir.1995) (court properly refused to take judicial notice of corporation’s SEC form to determine disputed fact because “its contents were subject to dispute”). While this Court may take judicial notice of the legislative histories, the statements contained therein may be subject to dispute. SUMMARY JUDGMENT MOTION Standard of Review Fed.R.Civ.P. 56 permits a “party against whom relief is sought” to seek “summary judgment on all or part of the claim.” In a summary judgment motion, a court must decide whether there is a “genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); see also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A party seeking summary judgment/adjudication bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may satisfy this burden by: (1) presenting evidence that negates an essential element of the nonmoving party’s case; or (2) demonstrating that the non-moving party failed to make a showing of sufficient evidence to establish an essential element of the nonmoving party’s claim, and on which the non-moving party bears the burden of proof at trial. Id. at 322, 106 S.Ct. 2548. “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the material on file that it believes demonstrates the absence of any genuine issues of material fact,” the burden of production shifts and the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (quoting Fed.R.Civ.P. 56(e)). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor, but “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat. Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); T.W. Elec. Serv., 809 F.2d at 631. The nonmoving party must “go beyond the pleadings and by her own affidavits, or by depositions, answer to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S., at 324, 106 S.Ct. 2548. Fed.R.Civ.P. 56(e) requires a party opposing summary judgment to “set out specific facts showing that there is a genuine issue for trial.” “In the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion will be granted.” Nilsson, Robbins, et al. v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir.1988). Discussion I. Commerce Clause Challenges The dormant Commerce Clause “directly limits the power of the States to discriminate against interstate commerce.” Wyoming v. Oklahoma, 502 U.S. 437, 454, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992); NCAA v. Miller, 10 F.3d at 633, 638 (9th Cir.1993). “Discrimination simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 331, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007). “The Commerce Clause ... is in its negative aspect ... a limitation on the regulatory authority of the states. Thus, although a state has power to regulate commercial matters of local concern, a state’s regulations violate the Commerce Clause if they are discriminatory in nature or impose an undue burden on interstate commerce.” Shamrock Farms Co. v. Veneman, 146 F.3d 1177, 1179 (9th Cir. 1998) (citations and internal quotations omitted). A. Whether LCFS is Subject to Commerce Clause Challenge Defendants contend that the LCFS is not subject to Commerce Clause challenge. This Court addresses Defendants’ arguments by separate order. In short, this Court concluded Section 211(c)(4)(B) of the Clean Air Act provides no express or unambiguous authority for California to violate the Commerce Clause. Accordingly, the LCFS is subject to Commerce Clause scrutiny. B. Applicable Standard of Review In reviewing a dormant Commerce Clause challenge, the Court must first consider the applicable standard of review. If a law discriminates against out-of-state entities, or attempts to regulate beyond a state’s jurisdiction, then the Court applies a strict scrutiny standard. Healy v. Beer Inst., 491 U.S. 324, 336-37, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989). If a law regulates in-state and out-of-state entities evenly and attempts to regulate only in-state activity, then the Court applies a balancing test. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). The strict scrutiny standard is difficult to satisfy, whereas the Pike balancing test is more favorable to the state law. The Rocky Mountain Plaintiffs contend that the LCFS is subject to strict scrutiny analysis because it discriminates against out-of-state interests. A law or regulatory scheme “can discriminate against out-of-state interests in three different ways: (1) facially; (2) purposefully, or (3) in practical effect.” Natl Ass’n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 525 (9th Cir.2009). The Rocky Mountain Plaintiffs argue that the LCFS discriminates in all three ways. The Rocky Mountain Plaintiffs assert that the LCFS: (1) facially discriminates because it assigns a higher carbon intensity score to corn-derived ethanol from the Midwest than it assigns to corn-derived ethanol from California; (2) practically discriminates because it purports to base carbon intensity scores on variables that are intertwined with origin (transportation and electricity); and (3) purposefully discriminates by closing California to Midwest corn ethanol while preserving a market for local corn ethanol. The Rocky Mountain Plaintiffs further argue that the LCFS impermissibly regulates out-of-state activity and is subject to strict scrutiny analysis. In the alternative, the Rocky Mountain Plaintiffs argue that the LCFS also fails the Pike analysis because it excessively burdens interstate commerce without producing local benefits. Defendants counter that the strict scrutiny analysis is improper, because the LCFS is a neutral law that applies evenly to all fuel-providers within the state of California. Defendants further contend that Defendants’ arguments as to the burdens and effects of the LCFS are unripe and premature, and are the subject of Defendants Fed.R.Civ.P. 56(d) motion. Defendants move separately for judgment in their favor, arguing that the LCFS does not burden interstate commerce and produces local benefits. Defendants assert that the Rocky Mountain Plaintiffs provide no evidence of a negative effect on interstate commerce or injury to any of the Rocky Mountain Plaintiffs or their members. Defendants submit that the Midwest ethanol industry is thriving, notwithstanding the LCFS and its application. Defendants suggest that there is no danger of future harm to the Midwest ethanol industry, because it is increasing its efficiency, diminishing its carbon footprint, and therefore, becoming more competitive in California. Finally, Defendants argue that the EPA’s approval of E 15, the increasing numbers of flex-fueled vehicles on the road, and the growth of international exports of corn ethanol will expand the non-California ethanol market substantially. Based on these arguments, Defendants oppose the Rocky Mountain Plaintiffs’ summary judgment motion, and move for summary judgment in their favor. To determine the appropriate standard of review, the Court must first consider whether the LCFS overtly discriminates against interstate commerce or impermissibly regulates interstate commerce. If the answer is in the affirmative, then this Court shall address the remaining factors under the strict scrutiny analysis. If the Court finds that the LCFS is nondiscriminatory, then the Court shall address the Pike balancing factors to analyze the Rocky Mountain Plaintiffs’ dormant Commerce Clause challenge. C. Strict Scrutiny Analysis 1. Whether the LCFS facially discriminates against interstate commerce States may not “discriminate against an article of commerce by reason of its origin or destination out of State.” C & A Carbone, Inc. v. Town of Clarkstown, N. Y., 511 U.S. 383, 390, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). “The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism.” Id. at 337-38, 114 S.Ct. 1677. A law is facially discriminatory when it “is not necessary to look beyond the text of this statute to determine that it discriminates against interstate commerce.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 575-76, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997). In this context “ ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste, 511 U.S. at 99, 114 S.Ct. 1345. Relying on LCFS § 95486(b) and Table 6, Plaintiffs argue that the LCFS’ discriminatory treatment of physically and chemically identical fuels is reflected on the face of the LCFS. Plaintiffs point out that although corn ethanol produced in California and the Midwest have “identical physical and chemical properties,” ISOR V-30, Table 6 provides lower, more favorable carbon intensity scores for corn ethanol produced in California than corn ethanol produced in the Midwest. As reflected in the table, supra, California corn-derived ethanol pathways are assigned 10% lower carbon intensity score as compared to the Midwest counterpart pathways. Plaintiffs contend that this difference reflects “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Sys. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). By assigning a higher carbon intensity score to the Midwest, the LCFS creates an “economic barrier against competition with the products of another state.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct. 497, 79 L.Ed. 1032 (1935). Plaintiffs point out that the LCFS assigns higher carbon intensity values to corn ethanol “based on ... [the] location of the production facility.” FSOR at 508. Plaintiffs contend that imposition of a higher carbon intensity score based on the “location of the production facility” constitutes express discrimination against Midwest corn-derived ethanol in favor of California corn ethanol. Moreover, Plaintiffs argue that CARB may not discriminate against out-of-state facilities based on transportation. In creating the LCFS, CARB acknowledged that “the carbon intensities of some California produced fuels ... benefit from shorter transportation distances.” FSOR at 521. Plaintiffs argue, however, that CARB may not impose a barrier to interstate commerce based on the distance that the product must travel in interstate commerce. Defendants maintain that the LCFS applies evenhandedly to all ethanol used as a fuel in California. Defendant explain that all ethanol sold as fuel in California will receive a carbon intensity value based on its lifecycle GHG emissions analysis. LCFS § 95483; Scheible Deck, ¶¶ 26, 34-42. In so stating, CARB admits one exception applies to a Midwest ethanol for which a specific source cannot be identified. In that event, the fuel may be assigned the Midwest average carbon intensity value. Scheible Deck, ¶ 39. Defendants explain that for all ethanol pathways, the carbon intensity value is determined by the application of the same scientific modeling tool (CA-GREET). Scheible Deck, ¶¶ 15-25. Defendants conclude that because the LCFS applies the same emissions modeling tool and same regulatory mechanism to all ethanol pathways sold in California, regardless of origin, the LCFS is not discriminatory on its face. Having considered the parties’ arguments, relevant case law, and admissible evidence, this Court finds that the LCFS and Table 6 explicitly differentiate among ethanol pathways based on origin (Midwest vs. California) and activities inextricably intertwined with origin (electricity provided by Midwest power companies vs. California power suppliers and interstate transportation). When comparing plants with the same feedstock and production process, the LCFS assigns a higher Cl on the basis of origin alone. Although California applies the same CA-GREET formula to all pathways evenly, the variables within the formula favor California ethanol producers by assigning lower Cl scores based on location. For at least four pathways identified on Table 6 that have identical production processes that create physically and chemically identical ethanol, the Lookup Table assigns a higher score to the ethanol produced in the Midwest and the lower score to the ethanol produced the same way in California. The following table, derived from Table 6, illustrates the comparison: Carbon Intensities Assigned to Midwest and California Corn Ethanol Difference Between Carbon Intensities for Midwest and Assigned Total Carbon California Corn Etha-Fuel_Fuel Pathway_Intensity (gC02e/MJ) nol (gC02e/MJ)_ Corn Ethanol 1. Midwest; Dry Mill; 98.40 9.50 _DrvDGS: NG_ la. California; Dry Mill; 88.90 — _DrvDGS: NG_ 2. Midwest; Dry Mill; 90.10 9.40 _WetDGS: NG_ 2a. California; Dry Mill; 80.70 — _WetDGS: NG_ 3. Midwest; Dry Mill; 86.80 9.36 WetDGS; 80% NG; _20% Biomass_ 3a. California; Dry Mill; 77.44 — WetDGS; 80%NG; _20% Biomass_ Plaintiffs point out that the LCFS assigns Midwest ethanol over 10% higher carbon intensity over its California ethanol counterpart. For example, Midwest; Dry Mill; Dry DGS; NG is assigned a carbon intensity score of 98.40 gC02e/MJ, whereas California; Dry Mill; Dry DGS, NG has a score of 88.90 gC02e/MJ. The difference — -9.50 gC02e/MJ — is more than 10% of the value of the California fuel’s assigned carbon intensity. Similar differences appear for the Dry Mill; Wet DGS; NG pathway and the Dry Mill; Wet DGS; 80% NG; 20% Biomass corn-derived ethanol pathway. The LCFS treats Midwest corn-derived ethanol differently than similar corn-derived ethanol made in California. In assigning higher Cl scores based on, inter alia, the location of the production facility and the distance the product travels, scores that ultimately will affect the price of the product, this Court concludes that the LCFS discriminates against out-of-state corn-derived ethanol on its face. CARB attributes the difference in carbon intensity values to multiple “scientific” factors that are not based on location. These factors include differences in GHG emissions in transportation and electricity sources. See FSOR at 713 (“The carbon intensities of some California-produced fuels do benefit from shorter transportation distances and lower carbon intensity electricity sources.”). Moreover, CARB considers GHG emissions from California inherently lower than Midwest ethanol based on transportation of Midwest ethanol to California. See FSOR at 521 (Carbon intensity values “included [GHG] emissions associated with transporting ethanol from the Midwest to California.”). CARB further assumes that California corn ethanol producers have better access to electricity produced from hydropower and nuclear power plants than Midwestern corn ethanol producers, will be at least as efficient as Midwestern producers in the use of comparable electricity sources, and will not use coal in their processes. See FSOR at 602 (“California biorefineries do not use coal in their operation.”); FSOR at 521 (CARB does not “expect ethanol produced using coal power to be used in California under the LCFS.”). While these factors may not overtly discriminate based on location, they do assign favorable assumptions to California while penalizing out-of-state competitors. California is attempting to stop leakage of GHG emissions by treating electricity generate outside of the state differently than electricity generated inside its border. This discriminates against interstate commerce. Moreover, tying carbon intensity scores to the distance a good travels in interstate commerce discriminates against interstate commerce. See Tribe, 1 Am. Constitutional Law 1109 (3d ed. 000) (Discrimination against an “activity which is essential for an out-of-state enterprise but not essential or a competing local business” is discrimination against interstate commerce.). In addition, the overtly favorable assumptions (although they may be true) related to the electricity powering the plants favors California producers and penalizes out-of-state competitors. The Court concludes that the LCFS offends the Commerce Clause after considering the unique challenge presented. This is not the quintessential dormant Commerce Clause challenge. Clearly, a law that compels the use of in-state products or forbids the use of out-of-state products would violate the Commerce Clause. See, Alliance for Clean Coal v. Miller, 44 F.3d 591, 596 (7th Cir.1995). So, too, would a law that imposes a surcharge on an out-of-state product made in an identical fashion. See, Oregon Waste, 511 U.S. at 100, 114 S.Ct. 1345. While the ethanol made in the Midwest and California are physically and chemically identical when ultimately mixed with petroleum, and while the pathways may be the similar, this Court appreciates that the carbon intensities of these two otherwise-identical products are different according to lifecycle analysis. Indeed, the point of the LCFS is to penalize the differences between the California and Midwest ethanol. — the carbon emissions from the transportation, the different farming methods used, and the different types of electricity provided to and used by the plants — to reduce emissions. Although CARB’s goal to combat global warming may be “legitimate,” however, it cannot “be achieved by the illegitimate means of isolating the State from the national economy.” City of Philadelphia v. New Jersey, 437 U.S. 617, 626, 627, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). Defendants admit that in California “there is a price difference between the 90.1 Cl corn ethanol and the 98.4 Cl corn ethanol.” Waugh Decl. at ¶ 11. Because of the transportation, electricity and other penalties assigned to Midwest corn ethanol will affect the price of the Midwest ethanol in the California market, the LCFS makes the higher Cl corn-ethanol undesirable to purchase or use. But the price differential is based on transportation and out-of-state electricity — both factors that discriminate based on location. In addition, the pressure the LCFS puts on out-of-state competitors to reduce its Cl score to become equal to those scores in California “make[s] doing business in the state ... more costly for out-of-state companies relative to in-state firms.” Biohazard Waste and Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 398 (9th Cir.1995). CARB may not impose a barrier to interstate commerce based on the distance that the product must travel in interstate commerce. See Dean Milk Co. v. Madison, 340 U.S. 349, 354 n. 4, 71 S.Ct. 295, 95 L.Ed. 329 (1951) (striking down local requirement that required milk sold in the city to be pasteurized within five miles of the city lines); see also West Lynn Creamery v. Healy, 512 U.S. 186, 202, 114 S.Ct. 2205, 129 L.Ed.2d 157 (1994) (“the imposition of a differential burden on any part of the stream of commerce ... is invalid, because a burden placed at any point will result in a disadvantage to the out-of-state producer.”). Accordingly, the LCFS discriminates against out-of-state commerce and is subject to strict scrutiny analysis. The LCFS facially discriminates against interstate commerce notwithstanding the fact that it may also benefit some out-of-state interests or burden some in-state interests. Under the LCFS, Brazilian sugarcane ethanol has a lower Cl score than some in-state corn ethanol pathways. Because the LCFS makes production process, feedstock and origin relevant, comparing pathways with different production processes or feedstocks is a red herring. As set forth above, when comparing pathways with the same feedstock and production processes, the LCFS discriminates on the basis of origin. Moreover, a facial discrimination challenge is not defeated simply because other out-of-state interests may benefit. See Daghlian v. DeVry Univ., Inc., 582 F.Supp.2d 1231, 1243-44 (C.D.Cal.2007) (California law’s exception for Hawaiian entities did not defeat facial discrimination claim); Limbach, 486 U.S. at 274, 108 S.Ct. 1803 (“explicitly depriv[ing] certain products of generally available beneficial tax treatment because they are made in certain other States” discriminates even though “some out-of-state manufacturers” benefitted). Similarly, while in-state providers are penalized for transporting corn from out-of state, strict scrutiny still applies. “[L]egislation favoring in-state economic interests is facially invalid under the dormant Commerce Clause, even when such legislation also burdens some in-state interests or includes some out-of-state interests in the favored classification.” Daghlian v. DeVry Univ., 582 F.Supp.2d 1231, 1243 (C.D.Cal.2007) (internal quotes omitted). Moreover, the Method 2A and Method 2B procedures in the LCFS do not alter this Court’s conclusion that the LCFS discriminates on its face against out-of-state corn ethanol. Method 2A and Method 2B set forth administrative procedures through which a regulated party may seek to amend the LCFS Lookup Tables to add additional fuel pathways. LCFS § 95486(c)-(f). It is no defense to describe methods that might allow amendment of the LCFS in a manner that might ameliorate the discriminatory impact of the regulation. Approval of the new pathways is solely within CARB’s discretion. Moreover, these methods underscore the discrimination inherent in the CLFS. For example, Defendants treat the “newer” California dry mill ethanol plants presumptively as being more energy efficient than the “mix of more than 100 MidWest plants,” resulting in a differential of 3.1 gC02e/MJ in favor of California. Scheible Decl. at ¶ 46. By contrast, a Midwest ethanol plant cannot seek to amend its fuel pathway even if it could show that its ethanol plant was as efficient as a newer California plant because the LCFS requires any regulated party to show that its proposal is “at least 5.00 grams C02eq/MJ less than the [carbon intensity] for the fuel as calculated under Method 1.” LCFS § 95486(e)(2)(A). Accordingly, even these methods treat California ethanol plants more favorably than Midwest plants. For the foregoing reasons, this Court finds that the LCFS impermissibly discriminates on its face against out-of-state entities. 2. Whether the LCFS Controls Extraterritorial Conduct As an alternative argument, the Rocky Mountain Plaintiffs contend that strict scrutiny also applies to the LCFS if it attempts to “control conduct beyond the boundary of the state.” Healy v. Beer Inst., 491 U.S. 324, 336-37, 109 S. Ct. 2491, 105 L.Ed.2d 275 (1989). Under this doctrine, the “Commerce Clause ... precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State.” Edgar v. MITE Corp., 457 U.S. 624, 642-43, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982). The Commerce Clause also forbids a state “statute that directly controls commerce occurring wholly outside the boundaries of a State” as that statute “exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature.” Healy, 491 U.S. at 336, 109 S.Ct. 2491. “The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.” Id. (citing Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986)). This Court evaluates the practical effect of the statute “not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation.” Id. “Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.” Id. The Rocky Mountain Plaintiffs argue that the LCFS controls conduct that occurs wholly outside of California. The Rocky Mountain Plaintiffs point out that most of the production of corn ethanol occurs entirely outside of California. In addition, that production has no impact on the chemical or physical properties of the corn ethanol ultimately used in California or the tailpipe emissions of motor vehicles that will use the ethanol in California. The Rocky Mountain Plaintiffs contend that, in addition to regulating emissions in California, the ambitious LCFS calibrates Cl scores so that they regulate, among other things, deforestation in South America, how Midwest farmers use their land, and how ethanol plants in the Midwest produce animal nutrients. The Rocky Mountain Plaintiffs contend that the LCFS not only regulates the out-of-state production processes for corn ethanol imported into California, but it goes beyond by penalizing corn ethanol producers for their entirely separate business decision to dry distillers grains co-products after the ethanol is produced. Moreover, CARB imposes a substantial penalty — more than 30% of the Cl score for corn ethanol — for “indirect land use.” That penalty is used to discourage farmers around the world from converting nonagricultural land into farmland to enter the corn market. Defendants argue that the Rocky Mountain Plaintiffs rely on the mistaken assertion that the LCFS is “regulating” the activities that it takes into consideration to determine Cl values. Defendants explain that the LCFS creates a market-based system which includes a yearly average performance standard and the availability of trading for credits and debits. In-state and out-of-state producers with higher Cl values are not required to reduce Cl values or to make changes in production or distribution in order to sell their ethanol in California. Nor are regulated parties prevented from purchasing fuels with higher/ Cl values. Based on this system, Defendants submit, any out-of-state effects are indirect, rather than direct regulations. Moreover, Defendants argue that the Commerce Clause protects the ethanol market, not individual particular interstate firms. Defendants admit that the LCFS structure will shift the market by weakening the position of the higher-CI producers relative to lower-CI producers causing some higher-CI producers may choose to withdraw from the California market. Defendants maintain, however, that these market forces do not regulate commerce outside of California’s boundaries. Ostensibly, the LCFS regulates only fuel-providers in California. This fact, however, does not resolve the issue. Defendants’ arguments improperly focus on whether or not the LCFS directly regulates the out-of-state entities. As set forth above, the “critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.” Healy, 491 U.S. at 336, 109 S.Ct. 2491. By using the lifecycle analysis approach to reducing GHG emissions, California is attempting to account for-and reduce-emissions from the entire pathway. Differences in Cl scores are based on CARB’s assessment of Midwest states “ ‘[flarming practices (e.g. frequency and type of fertilizer used); [c]rop yields; [h]arvesting practices; [and] [Collection and transportation of the crop.’” ISOR IV — 4 to IV-5. In addition, the LCFS includes a “land use change” component, with higher scores given to the Midwest and Brazil. LCFS § 95486(b); Table 6. According to CARB, the LCFS assigns carbon intensity based on these activities to provide an “incentive for regulated parties to adopt production methods which result in lower emissions.” FSOR at 84. Defendants cannot dispute that the “practical effect” of the regulation would be to control this conduct — occurring wholly outside of California. Indeed, the aim of the LCFS is to change these practices to reduce GHG emissions. But in penalizing these practices to “incentive regulated parties to change” their conduct (including conduct occurring wholly outside of the state), the LCFS impermissibly attempts to “control conduct beyond the boundary of the state.” Healy, 491 U.S. at 336-37, 109 S.Ct. 2491. Defendants admit that, in enacting the LCFS, “California has essentially assumed legal and political responsibility for emissions of carbon resulting from the production and transport, regardless of location, of transportation fuels actually used in California.” Defs. Mem. In Support of Cross-Motion for Summary Judgment, p. 17. Defendants cannot regulate interstate or foreign commerce occurring outside of California, however, because, under the Commerce Clause, “States and localities may not attach restrictions to ... imports in order to control commerce in other States.” Carbone, 511 U.S. at 393, 114 S.Ct. 1677. Doing so would “extend the [State’s] police power beyond its jurisdictional bounds.” Id.; see also, Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935). Defendants cannot take “legal and political responsibility” of commerce occurring outside of California, even if the products of that commerce ultimately are sold in California. Moreover, the LCFS impermissibly regulates the channels of interstate commerce. Before a party can generate credits under the LCFS regulation, for example, it must produce maps and other documentation to prove to CARB how its fuel or feedstock is transported to California. See LCFS § 95484(d)(1). Any “material change” to the transportation — including changes to out-of-state legs of the transportation, such as replacing “rail with truck or ship transport,” LCFS § 95484(d)(2)(D) — must be approved by CARB or else the party loses its right to generate credits. The registration form CARB requires ethanol producers to submit “entails providing facility information that supports the identification of Carbon Intensity (Cl) values and an Initial Demonstration of the Physical Pathway (how the fuel arrives to California) for the fuel(s) produced at [the registrant’s] facility.” Dinnen Deck Exh. 1 (“California Air Resources Board Low Carbon Fuel Standard Biofuel Producer Registration Form”). This Court agrees with Rocky Mountain Plaintiffs that this type of regulation “forc[es] a merchant to seek regulatory approval in one State before undertaking a transaction in another,” causing the LCFS to “directly regulate[] interstate commerce.” Brown, 476 U.S. at 582, 106 S.Ct. 2080. The Court further considers “how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation.” Healy, 491 U.S. at 336, 109 S.Ct. 2491. “The purpose of the Commerce Clause is to protect the nation against economic Balkanization.” Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1015 (9th Cir.1994). The Rocky Mountain Plaintiffs submit that the LCFS would Balkanize the ethanol market, because if every state adopted such a regime, they would plainly “interfere[ ] with free trade” in ethanol and ethanol production. See Armco, Inc. v. Hardesty, 467 U.S. 638, 644, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984). Defendants counter that because the cost of ethanol production and plants is so high, the LCFS would not Balkanize the ethanol production market. If every State were to adopt legislation based on a lifecycle analysis of fuels, one of two outcomes may occur. First, the ^ethanol market would become Balkanized, Since a producer would have strong incentives to either relocate its operations in the State of largest use, or sell only locally to avoid transportation and other penalties. This would interfere with the “maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce.” Healy, 491 U.S. at 335-36, 109 S.Ct. 2491. Second, there is a danger that inconsistent legislation, if adopted by sister states, would cause significant problems to the ethanol market. Ethanol producers and suppliers in any State would be hard-pressed to satisfy the requirements of 50 different LCFS regulations which may required 50 different levels of reductions over 50 different time periods. Moreover, as amicus for the Plaintiffs point out, California’s regulation seeks to reach beyond its borders to interfere with those States’ decisions related to their individual electricity policies. “Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.” Healy, 491 U.S. at 336, 109 S.Ct. 2491. Based on these considerations, this Court concludes that the LCFS impermissibly controls conduct outside of its borders. 3. Whether the LCFS serves a legitimate local purpose Once a state law is shown to discriminate against interstate commerce “either on its face or in practical effect,” or to exercise extraterritorial control, the burden falls on the State to demonstrate both that the statute “serves a legitimate local purpose,” and that this purpose could not be served as well by available nondiscriminatory means. Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979); see also, e.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 957, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 353, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Dean Milk Co. v. Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 95 L.Ed. 329 (1951). The Rocky Mountain Plaintiffs submit that the LCFS serves no local purpose. They point out that the purported goal is to combat global climate change, which serves either a national or international purpose, not a local purpose. The Rocky Mountain Plaintiffs contend that instead of focusing on local GHG emissions, like smog in the Central Valley, the LCFS has a purpose and aim that is broader than its territory. Defendants argue that the LCFS serves the legitimate and local purpose to reduce the risks of global warming. Defendants’ correctly point out that in Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), the Supreme Court recognized that a state has a “well-founded desire to preserve its sovereign territory” from the threats of rising seas and other impacts of global warming. Id. at 519, 522, 127 S.Ct. 1438. “That these climate-change risks are ‘widely-shared’ does not minimize [California’s] interest” in reducing them. Id. at 522, 127 S.Ct. 1438. Significantly, in Massachusetts v. EPA the Supreme Court held that states have standing to ask the federal government to regulate GHG emissions. 549 U.S. 497, 127 S.Ct. 1438. Nevertheless, the Court explained in dicta that a state has a local and legitimate interest in reducing global warming. Based on this authority, this Court finds that the LCFS serves a local and legitimate interest. 4. Whether that purpose could be served through other nondiscriminatory means The final consideration in the strict scrutiny analysis is whether California has established that the goal of reducing global warming cannot be adequately served by nondiscriminatory alternatives. California has failed to establish this fact. While this Court recognizes that the lifecycle analysis is a widely-accepted approach nationally and internationally to reduce GHG emissions, Defendants have failed to establish that they could not achieve this goal through other nondiscriminatory means. The Rocky Mountain Plaintiffs suggest several nondiscriminatory alternatives. For example, an LCFS that does not contain the discriminatory components may be effective in reducing GHG emissions. In addition, Defendants’ expert concedes that California could “adopt a tax on fossil fuels” to “reduce greenhouse gas emissions associated with California’s transportation sector.” Babcock Decl. ¶ 5. Addressing another alternative — regulating only tailpipe GHG emissions in California — Defendants speculate that it “may result in greater.. emissions overall,” though GARB stated that GHG emissions could be reduced by “increasing vehicle efficiency” or “reducing the number of vehicle miles traveled.” FSOR at 74. Although these approaches may be less desirable, for a number of reasons, Defendants have failed to establish there are no nondiscriminatory means by which California could serve its purpose of combating global warming through the reduction of GHG emissions. See Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951) (suggesting the use of national standards or expanding city inspections to achieve health-motivated regulation). 5. Conclusion Defendants and their amicus defend the use of lifecycle analysis as “internationally recognized,” and the lifecycle factors to be “universally applied.” Defendants further suggest that the federal government could permissibly use a lifecycle analysis approach in federal regulations on carbon intensity. This position highlights the Rocky Mountain Plaintiffs’ challenge. The dormant Commerce Clause enshrines the principle that the federal government can regulate commerce in ways that the States cannot. See Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 422, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946). Undoubtedly, the federal government may pass similar legislation if it choose. In passing the LCFS, however, California impermissibly treads into the province and powers of our federal government, reaches beyond its boundaries to regulate activity wholly outside of its borders, and offends the dormant Commerce Clause. II. Preemption Claim A. Introduction Rocky Mountain plaintiffs argue that the LCFS stands as an obstacle to the accomplishment of the full purposes and objectives of Congress when it enacted EISA. Rocky Mountain plaintiffs contend that EISA reflects Congress’ judgment that: the production of transportation fuels from renewable energy would help the United states meet rapidly growing domestic and global energy demands, reduce the dependence of the United States on energy imported from volatile regions of the world that are politically unstable, stabilize the cost and availability of energy, and safeguard the economy and security of the United States. Pub.L. 110-140 § 806(a)(4), 121 Stat. 1492, 1722 (2007). Rocky Mountain plaintiffs assert that Congress adopted EISA to serve two purposes: (1) to enhance energy independence and security and to protect pre-existing investment by mandating the use of renewable fuels, and is so mandating; (2) to help the United States contribute to global efforts to reduce GHG emissions. To further those dual goals, Rocky Mountain plaintiffs contend that Congress struck a balance: Biorefineries, including corn ethanol biorefineries, that were either in production, or had completed construction, at the time the provision was enacted were not required to comply with EISA’s mandate to reduce GHG life-cycle emissions by 20%. See 42 U.S.C. § 7545(o )(2)(A)(i). Rocky Mountain plaintiffs argue that the LCFS “disrupts Congress’ balance by closing California to ethanol produced by more than 150 ‘grandfathered’ biorefineries.” In addition, Rocky Mountain plaintiffs contend that the LCFS frustrates EISA’s effectiveness. Rocky Mountain plaintiffs point out that in this Court’s Motion to Dismiss Order, this Court concluded that if Plaintiffs’ factual allegations were assumed to be true, “implementation of California’s LCFS would ‘frustrate [] the full effectiveness of federal law.’ ” Rocky Mountain Farmers Union v. Goldstene, 719 F.Supp.2d 1170, 1195 (E.D.Cal.2010) (quoting Perez v. Campbell, 402 U.S. 637, 652, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971)). Rocky Mountain plaintiffs maintain that because they rely on the statute, statutory history, and Defendants’ own statements regarding the LCFS, the undisputed evidence establishes that the LCFS frustrates the goals and purposes of EISA and, therefore, is invalid. Defendants oppose Rocky Mountain plaintiffs’ motion on a number of grounds. Defendants argue first that Rocky Mountain plaintiffs lack standing to pursue their preemption claim. Next, Defendants argue that preemption requires clear Congressional intent to preempt California in the area of air pollution, which does not exist. Third, Defendants contend that the EPA’s approval of E 15 blends fundamentally alters the landscape of plaintiffs’ preemption claim. Fourth, Defendants argue that Plaintiffs produce no evidence of a conflict between the LCFS and RFS2. Fifth, Defendants submit that the Rocky Mountain plaintiffs cannot establish causation. The Court considers the parties’ arguments in turn. B. Standing Defendants argue that discovery has revealed that the Rocky Mountain plaintiffs lack standing to pursue their preemption claim. This Court’s Article III jurisdiction “depends on the existence of a ‘case or controversy.’ ” GTE California, Inc. v. Federal Communications Commission, 39 F.3d 940, 945 (9th Cir.1994). “To enforce Article Ill’s limitation of federal jurisdiction to ‘cases and controversies, Plaintiffs must demonstrate ... standing Nelson v. National Aeronautics and Space Admin., 530 F.3d 865, 873 (9th Cir.2008). To satisfy the Constitution’s standing requirement, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that there injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992