Full opinion text
MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ MOTIONS TO DISMISS Lawrence J. O’Neill, UNITED STATES CHIEF DISTRICT JUDGE I. INTRODUCTION Two sets of Plaintiffs, the “RMFU Plaintiffs” and the “AFPM Plaintiffs,” challenge the constitutionality of California’s Low Carbon Fuel Standard (“LCFS”), Cal. Code Regs. Tit. 17, §§ 75480-90. Defendants move to dismiss all four claims in the RMFU Plaintiffs’ Third Amended Complaint (“TAC”), Doc. 374. Doc. 378. Defendants move for judgment on the pleadings on the AFPM Plaintiffs’ claims in their Second Amended Complaint (“SAC”), Doc. 373, concerning the now-repealed version of the LCFS, and move to dismiss the remaining claims against the currently operative LCFS. Doc. 380-1. The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 388. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ motions. II. FACTUAL AND PROCEDURAL BACKGROUND This case concerns Plaintiffs’ years-long and complex challenge to the LCFS. After the Ninth Circuit remanded the case to this Court in 2014, see Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013) (“RMFU’), the Court granted in part and denied in part the AFPM Plaintiffs’ motion to amend the complaint. Rocky Mountain Farmers Union v. Goldstene, No. 1:09-cv-2234-LJO-BAM, 2014 WL 7004725, at *1 (E.D. Cal. Dec. 11, 2014) (“RMFU Amendment”). In August 2015, the Court granted in part and denied in part Defendants’ motion to dismiss certain of the AFPM Plaintiffs’ claims. See Am. Fuels & Petrochemicals Mfrs. Ass’n. v. Corey, No. 1:09-cv-2234-LJO-BAM, 2015 WL 5096279, at *1 (E.D. Cal. Aug. 28, 2015) (“MTD Order”). In June 2016, the Court granted Plaintiffs’ second motion to amend their pleadings. See Rocky Mountain Farmers Union v. Corey, No. 1:09-cv-2234-LJO-BAM, 2016 WL 3277018 (E.D. Cal. June 15, 2016) (“RMFU Amendment II”). The Court incorporates by reference the summary of the extensive procedural history of this consolidated action contained in RMFU Amendment, 2014 WL 7004725, at *1-8, and the MTD Order, 2015 WL 5096279, at *1-5. Only an abbreviated recitation, of the complex factual and procedural background follows; the Court discusses the relevant aspects of the facts and prior proceedings in more detail in its analysis below. The California Air Resources Board (“CARB”) promulgated and adopted the LCFS in 2009 and 2010. TAC ¶ 37. The regulation went into effect in 2011 (“the Original LCFS”), and CARB amended it in 2012 (“the 2012 LCFS”). SAC ¶75. CARB repealed the LCFS in 2015 after the California Court of Appeal held that CARB made errors when adopting it. See POET, LLC v. Cal. Air. Res. Bd., 218 Cal.App. 4th 681, 160 Cal.Rptr.3d 69 (2013); see also Doc. 379-1, Ex. A. CARB adopted a new LCFS in 2015 (“the 2015 LCFS”), which went into effect in 2016, and remains the operative version of the regulation. See Doc. 379-1, Ex. A; at 1-6, The AFPM Plaintiffs now bring claims against all three vérsions of the LCFS; the RMFU Plaintiffs bring claims against only the 2015 LCFS. As explained in more detail below, the LCFS regulates both ethanol and crude oil. The RMFU Plaintiffs challenge the LCFS’s ethanol provisions whereas the AFPM Plaintiffs challenge its crude oil provisions. The RMFU’ Plaintiffs’ TAC contains four causes of action; TAC at 18-22. Claims' one and two allege, respectively, that the LCFS is preempted by federal law on its face and as-applied to Plaintiff Growth Energy. TAC at 15-18. Specifically, the RMFU Plaintiffs assert the federal Renewable Fuel Standard (“RFS”), 42 U.S.C. § 7545(o )(2)(A)(i), of the Energy Independence and Security Act (“EISA”) preempts the LCFS. Id, ¶¶ 66-68. Claims three and four allege, respectively, that the LCFS “improperly regulates, discriminates against, and unduly burdens interstate commerce and so is invalid” on its face and as applied to Growth Energy. Id. at 18-22. The AFPM Plaintiffs assert three causes of action in their SAC. The first and second allege that all three versions of the LCFS violate the Commerce Clause because they “impermissibly regulate conduct occurring wholly outside of California.” SAC ¶¶ 96, 104; see also id. ¶¶ 93, 101. The third cause of action asserts all three versions of the LCFS violate the Commerce Clause “by discriminating against transportation fuels produced in other States and other countries.” Id. ¶ 111..The AFPM Plaintiffs further assert “[t]he discrimination inherent in the Original LCFS, 2012 LCFS, and 2015 LCFS is designed to provide an unfair competitive advantage to local economic interests and to promote the use of California fuels in California,” which “imposefs] significant burdens on Plaintiffs’ members in connection with their conduct of interstate commerce.” Id. ¶¶ 113-14. With respect to their Commerce Clause elairhs, both sets of Plaintiffs assert the ethanol provisions of the LCFS discriminate on their face, and in their purpose and effect. The RMFU Plaintiffs further assert the ethanol provisions fail under Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Thus, between both sets of Plaintiffs, they assert the following: (1) The LCFS is preempted by federal law, namely, the RFS in the EISA, on its face and as applied to Growth Energy; (2) The LCFS, in all three of its forms, is an impermissible extraterritorial regulation that violates the Commerce Clause; and (3) The LCFS, in all three of its forms, violates the Commerce Clause (a) on its face, (b) in purpose and effect, and (c)under Pike. Defendants (1) move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) as to Plaintiffs’ claims concerning the Original LCFS on the ground they are moot, and (2) move to dismiss the remaining claims under Rule 12(b)(6) as barred by the law of the case, or for failure to state a claim (or both). Plaintiffs oppose in all respects. III. STANDARDS OF DECISION A. Rule 12(b)(6) A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency'of the allegations set forth in the complaint. A 12(b)(6). dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must, in accordance with Rule 8, allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully,” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). Thus, “bare assertions ... amounting] to nothing more than a. ‘formulaic recitation of the elements’ ... are not entitled to be assumed true.” Iqbal, 556 U.S. at 681, 129 S.Ct. 1937. “[T]o be entitled to the presumption of truth, allegations in a complaint ... must contain sufficient allegations of. underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In practice, “a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. 1955. B. Rule 12(c) Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings “[ajfter the pleadings are closed — but early enough not to delay trial.” “A motion for judgment on the pleadings should be granted where it appears the moving party is entitled to judgment as a matter of law.” Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003). A “judgment on the pleadings is' appropriate when, even if all allegations in the complaint are true, the moving party is .entitled to judgment as a matter of law.” Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). “A judgment on the pleadings is a decision'on the merits.” 3550 Stevens Creek Assocs. v. Barclays Bank of California, 915 F.2d 1355, 1356 (9th Cir. 1990), cert. denied, 500 U.S. 917, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991). A 12(c) motion' “is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Herbert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per curiam). “[T]he central issue is whether, in light most favorable to the plaintiff, the complaint states a valid claim for relief.” Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001). “[A]ll allegations of fact of the opposing party are accepted as true.” Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967). Thus, a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is “functionally identical” to a motion to dismiss under Rule 12(b)(6). Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Although Rule 12(c) does not mention leave to amend, courts have discretion to grant a Rule 12(c) motion with leave to amend. See Carmen v. San Francisco Unified Sch. Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997). Like a Rule 12(b)(6) motion to dismiss, a Rule 12(c) motion challenges the legal sufficiency of an opposing party’s pleadings. “When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one.” Balistreri, 901 F.2d at 699. Dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged , under a cognizable legal theory.” Id. “Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (internal citations and quotations omitted). “While a complaint ... does not need detailed factual allegations ... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitations of the elements of a cause of action will not do.” Id. at 1964. IV. DISCUSSION A. Uncontested aspects of Defendants’ motions The AFPM Plaintiffs candidly acknowledge that a number of their claims are foreclosed by RMFU and this Court’s pri- or decisions and, accordingly, do not oppose Defendants’ motions to dismiss them or for judgment on the pleadings on them. See Doc. 383 at 5-6. Those claims are: • All claims against the Original and 2012 LCFS, except for the claims that those regulations discriminate against interstate commerce in purpose and effect; • The Original, 2012, and 2015 LCFS are impermissible extraterritorial regulations; • The crude oil provisions of the Original, 2012, and 2015 LCFS discriminate against interstate commerce; and • The ethanol provisions of the Original, 2012, and 2015 LCFS facially discriminate against interstate commerce. Doc. 383 at 5-6, 13-14. Although the RMFU Plaintiffs assert the same uncontested claims as the AFPM Plaintiffs do, they do not oppose Defendants’ motion to dismiss or for judgment on the claims. See Doc. 384 at 24-28; see also Doc. 387 at 9. Because the parties agree that RMFU and the Court’s prior decisions foreclose these claims, the Court GRANTS Defendants’ motions on them WITHOUT LEAVE TO AMEND. Therefore, all that remains of the AFPM Plaintiffs’ claims are their claims that the ethanol provisions of the Original, 2012, and 2015 LCFS discriminate against interstate commerce in purpose and effect. See Doc. 383 at 6. The RMFU Plaintiffs assert the same claims, and additionally assert that all versions of the LCFS are preempted by federal law and the ethanol provisions of all versions of the LCFS fail under Pike. B. Whether the AFPM Plaintiffs’ claims against the Original and 2012 LCFS are moot Defendants move for judgment on the pleadings on AFPM Plaintiffs’ claims against the Original LCFS and 2012 LCFS on the ground that they are moot because both versions have been repealed and replaced. Doc. 380-1 at 15. Specifically, Defendants argue those claims are moot because the Court cannot grant any prospective relief, and the Eleventh Amendment bars any retrospective relief. Id. at 16. In their opposition, the AFPM Plaintiffs assert the Ninth Circuit held in RMFU that their challenges to repealed versions of the LCFS are not moot because “the credits allocated under both the Original LCFS and the 2012 LCFS continue to carry forward and may still be used by regulated parties to comply with the mandates of the 2015 LCFS.” Doc. 383 at 15 (citing RMFU, 730 F.3d at 1097 n.12). Thus, according to the AFPM Plaintiffs, the Court can grant prospective relief because how credits were calculated under prior versions of the LCFS affects how they will be calculated in the future, and the Court can therefore.order that “credits generated under those prior versions be recalculated on a nondiscriminatory basis that comports with the Constitution.” Id. at 16. Defendants argue in their reply that the AFPM Plaintiffs’ SAC does not contemplate the relief they purportedly seek, as stated in their opposition, i.e., that the Court order a recalculation of the credits assigned under the Original and 2012 LCFS. Doc. 385 at 3. Defendants assert that, even if the SAC sought this remedy, it is unavailable to the AFPM Plaintiffs because it “1) would not redress the injuries AFPM alleges, 2) is barred by the Eleventh Amendment, 3) would be> inherently inequitable, and 4) is the kind of individualized remedy AFPM lacks standing to seek.” Id. at 4. 1, Relief AFPM Plaintiffs seek In the SAC, the AFPM Plaintiffs seek the following relief: A. A declaratory judgment, pursuant to 28 U.S.C.. § 2201, that the LCFS, as originally ■ enacted and as amended in 2012 and 2015, violates the United States Constitution and is unenforceable; B. A preliminary and permanent injunction enjoining the Defendants from implementing or enforcing the LCFS; C. An order awarding plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and D. Such other and further relief as the Court deems just and proper. SAC at 20. The SAC. thus does not explicitly request that the Court order a recalculation of credits assigned under the Original and 2012 LCFS, should the Court find them unconstitutional. Though Defendants suggest that this request is articulated only in the AFPM Plaintiffs’ opposition, Defendants do not object to the Court’s considering it. The Court will therefore assume without deciding that the AFPM Plaintiffs seek in the SAC the credits recalculation. remedy that they articulate in their opposition. In any event, as discussed below, the AFPM Plaintiffs do not have standing to seek this remedy and, even if they did, it is barred by the Eleventh Amendment. 2. Standing Defendants assert — for the first time in their reply — that the AFPM Plaintiffs lack standing. The thrust of their one-paragraph argument is that determining the AFPM Plaintiffs’ sought-after credit recalculation would require' an assessment of the credits each of their thousands of members bought and sold, which is not permissible when a plaintiff, like the AFPM Plaintiffs, only has associational standing. Doc. 385 at 8. In support, Defendants reiy exclusively oh Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Id. In Warth, the Supreme Court explained that an entity has associational standing if, among other things, “the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the' cause.” Id. Warth and its progeny “have been understood to preclude associational standing when-an organization seeks damages-oh behalf of its members.” United Food & Comm. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 554, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (declin-ihg to apply to a union the prudential limitation barring an organization from seeking damages on behalf of its members, but only because Congress specifically permitted unions to do so). • Although the AFPM Plaintiffs state they do not seek damages, Doc. 383 at 16, their request for a recalculation of credits generated under the Original and 2012 LCFS is effectively a request for damages, or so analogous to a request for damages to render it indistinguishable from the circumstances underpinning Warth, 422 U.S. at 515-16, 95 S.Ct. 2197 (association plaintiff failed to allege “monetary injury to itself, nor any assignment of the damages claims of its members.... [mjoreover ... the damages claims are not common to the entire membership, nor shared by all in equal degree”). The AFPM Plaintiffs allege the LCFS is unconstitutionally discriminatory, in part because it requires regulated entities who purchase Midwest ethanol “to- purchase vast quantities of other fuels that California has assigned very low carbon intensities or to purchase ‘credits’ accumulated by other entities subject to the LCFS.” SAC ¶ 68; see also id. ¶ 33 (alleging fuel provides comply with the LCFS by, among other 'things, “purchas[ing] credits generated by other fuel providers”); Cal. Code Regs. § 95487 (outlining possible “Credit Transactions” under LCFS). As the AFPM Plaintiffs asserted on appeal before the Ninth Circuit: “The LCFS :.. penalizes] the use of fuels whose carbon-intensity scores exceed the regulation’s annual cap and plac[es] such fuels at a substantial disadvantage in the California market: parties using such fuels must either purchase credits from their competitors ... or incur .., penalties.” Doc. 386-1 at 53. The AFPM Plaintiffs thus argued that the LCFS “is discriminatory because ;,. higher carbon-intensity scores generate ‘deficits’ that must be eliminated-through the generation or purchase of ‘credits.’ ” Id. at 73. Because of this discriminatory effect, which leads to a price disparity between lower — and higher-carbon-intensity ethanol, the LCFS “could impose as much as $10 to $20 million in additional costs on regulated parties that sell gasoline in-California.” Id. at 39. • . The AFPM Plaintiffs therefore contend the purported discriminatory effects of the LCFS caused their members to spend more money on purchasing credits to comply with the LCFS. If the Court were to order a recalculation of credits generated under the Original and 2012 LCFS, as they request, it would require a number of individualized determinations, including (1) who bought which credits; (2) whether the alleged discriminatory effects of the LCFS caused the party to spend more on those credits; and (3) if so, how that should be remedied, ie., how much the parties are owed due to their overpayment — in other words, what their damages are; [These necessary individualized determinations thus render the AFPM Plaintiffs without associational standing to seek the credit recalculations that they request because it would be impossible to make the determinations without the participation of the AFPM Plaintiffs’ members. See Warth, 422 U.S. at 515-16, 95 S.Ct. 2191; Brown Group, 517 U.S. at 554, 116 S.Ct. 1529. 3. Eleventh Amendment Although the AFPM Plaintiffs claim they do not seek damages, the Court’s conclusion that the credit recalculations would require determining how much their members overpaid for credits — and ordering corresponding relief-leads the Court to conclude that the AFPM Plaintiffs essentially seek retrospective damages that are barred by the Eleventh Amendment. As explained above, the AFPM Plaintiffs claim the purported discriminatory effects of the Original and 2012 LCFS required them to purchase more credits (ie., spend more money) than would have been required had that alleged discrimination not existed. They now ask that the credits — all of which were bought and sold by them and other parties — be recalculated and redistributed in a different manner. In effect, the AFPM Plaintiffs request a reshuffling of state funds. “Relief that in essence serves to compensate a party injured in the past by an ’action of a state official in his official capacity that was illegal under federal law is barred” by the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). This includes cases for declaratory and injunc-tive relief that seek “a compensatory, backward-looking remedy,” Porter v. Jones, 319 F.3d 483, 491 n.7 (9th Cir. 2003), and encompasses “relief that is tantamount to an award of damages for a past violation of federal law, even though styled as something else.” Papasan, 478 U.S. at 278, 106 S.Ct. 2932 (citations omitted). “On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury.” Id. (emphasis added) (citations omitted). Accordingly, to the extent the AFPM Plaintiffs seek compensatory relief (whether credit calculations or. otherwise) that is based exclusively on Defendants’ conduct that allegedly violated federal law in the past, the Eleventh Amendment precludes that relief. But, to the extent they seek relief for Defendants’ past conduct that allegedly violated federal law that has an ongoing or future effect, the Eleventh Amendment does not preclude that'relief. See id. The Court therefore GRANTS IN PART and DENIES IN’ PART Defendants’ motion for judgment on Plaintiffs’ claims concerning the Original and 2012 LCFS on the ground they are barred by the Eleventh Amendment. As noted above, however, the Court finds it is a stretch, at best, to read the SAC as seeking the credit recalculation relief the • AFPM Plaintiffs purportedly seek; More importantly, the Court finds that the Court cannot — legally or practically — order the recalculations. The AFPM Plaintiffs have provided no authority that remotely suggests that relief,is permissible, and the Court cannot locate any. The Court therefore agrees with Defendants that, even if the Eleventh Amendment does not bar Plaintiffs’ recalculation relief, the Court is unable to grant it because it would be impossible and inequitable to the parties who have already bought and sold LCFS credits to recalculate and reassign the credits. As Defendants point out, millions of credits worth tens of millions of dollars have already been bought by numerous parties, most of which are not parties to this case. See Doc. 385 at 6-7. The Court therefore GRANTS Defendants’ motion for judgment on Plaintiffs’ claims against the Original and 2012 LCFS to the extent they seek a recalculation of already assigned credits because doing so would be inequitable and impractical. 4. Mootness This brings the Court to the issue of whether the AFPM Plaintiffs’ claims against the Original and 2012 LCFS are moot. A footnote in the Ninth Circuit’s decision in RMFU is directly on point and controls here. The court held: Although the 2011 Provisions have been amended, this does not render the challenge to them moot. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013) (quotation marks and citation omitted). Here, the 2011 Provisions applied to crude oil delivered through December 31, 2011, so one year of Fuel Standard credits were allocated based on the distinction between emerging and existing sources and between HCICOs and non-HCICOs. Advisory 13-01 altered the treatment of Potential HCICOs to conform, to the amended provisions, but sellers of .verified HCICOs could have reported individual carbon intensity values during 2011. Credits awarded based on those values will carry forward to subsequent years and may be used by a regulated party to comply with the Fuel Standard mandates. Cal. Code Regs. tit. 17, §§ 95484(b), (c)(4), 95485(e). The propriety of the scheme under which those credits were distributed remains a live controversy. RMFU, 730 F.3d at 1097 n.12. Plaintiffs had challenged the crude oil provisions of the Original LCFS (what the Ninth Circuit called “the 2011 Provisions”) in this Court and, by the time RMFU issued, they had been amended by the 2012 LCFS. See id. The Ninth Circuit observed that the means by which credits were calculated under the Original LCFS had an effect on how they were calculated under the then-current version of the regulation, the 2012 LCFS. Id. The Ninth Circuit thus explicitly held that Plaintiffs’ challenge to the Original LCFS was not moot'because it had a live, ongoing effect then, which would continue into the future. See id. That holding is directly applicable here. The AFPM Plaintiffs allege, consistent with RMFU, that the Original and 2012 LCFS affect how credits are calculated under the 2015 LCFS. Their challenge to the Original and 2012 LCFS therefore is not moot; it remains “a live controversy.” Id. Regardless of this conclusion, as explained above, the AFPM Plaintiffs’ potential remedy 'for any finding that either the Original or 2012 LCFS (or both) violated federal law is limited to the present and future effects of the Original and 2012 LCFS, and declaratory and injunctive relief against the regulations. Further, any remedy that is akin to damages, such as the AFPM Plaintiffs’ request for credits recalculation, is barred by the Eleventh Amendment. See Papasan, 478 U.S. at 278, 106 S.Ct. 2932 (citations omitted); see also Taylor v. Westly, 402 F.3d 924, 929-30 (9th Cir. 2005) (“[T]he Eleventh Amendment shields state governments ... from declaratory judgments against the state governments that would have the practical effect of requiring the state treasury to pay money to claimants”) (footnote omitted). Accordingly, Defendants’ motion for judgment on Plaintiffs’ claims against the Original and 2012 LCFS on the ground they are moot is GRANTED IN PART and DENIED IN PART. C. Preemption The RMFU Plaintiffs contend the LCFS is preempted under the Supremacy Clause because it conflicts with the EISA. See TAC ¶¶ 1, 65, 81; Doc. 384 at 16. Specifically, RMFU Plaintiffs allege the LCFS conflicts with: (1) the exemption from the RFS for certain fuel-producing facilities as provided in 42 U.S.C. § 7545(o )(2)(A)(i); (2) the geographical restrictions imposed on the EPA’s rulemak-ing authority under the EISA provided in 42 U.S.C. § 7545(o )(2)(A)(iii)(II)(aa) (“the geographic restrictions”); and (3) “the EPA’s discretion under the EISA to adjust the .percent reductions.in lifecycle [greenhouse gas (“GHG”)] emissions standards ... as well as the EPA’s discretion to waive such requirements,” as provided in 42 U.S.C. §§ 7545(o )(4), 7545(o )(7)(A). TAC ¶¶ 66-75. 1. Conflict preemption principles “The Supremacy Clause makes the laws of the United States ‘the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” Atay v. Cty, of Maui, 842 F.3d 688, 699 (9th Cir. 2016) (quoting U.S. Const., Art. VI, cl. 2). Accordingly, “state law is pre-empted to the extent that it actually conflicts with federal law.” English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Actual conflict occurs “where it is impossible for a private party to comply with both state and federal requirements, or where state law ‘stands as an obstacle to the accomplishment, and execution of the full purposes and objectives of Congress.’ ” Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal.statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). “[W]here a statute regulates a field traditionally occupied by states, such as health, safety, and'land use, a ‘presumption against preemption’ adheres.” Atay, 842 F.3d at 700 (quoting Wyeth v. Levine, 555 U.S. 555 n.3, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009)). Because federal courts “assume that a federal law does not preempt the states’ police power.absent a ‘clear and manifest purpose of Congress,’ ” id. (quoting Wyeth, 555 U.S. at 565, 129 S.Ct. 1187), “a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” Gade v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 110, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). The California legislature enacted the LCFS to regulate air quality in an attempt to improve, among other things, the well-being of 'California’s citizens and .environment. See RMFU, 730 F.3d at 1079 (citing Cal. Health & Safety Code § 38501(a)). The LCFS therefore falls within “an area of traditional state control.” Oxygenated Fuels Ass’n v. Davis, 331 F.3d 665, 673 (9th Cir. 2003); Exxon Mobil Corp. v. U.S. E.P.A., 217 F.3d 1246, 1255 (9th Cir. 2000) (“Air pollution prevention falls under the broad police powers of the states, which include the power to protect the health of citizens in the state. Environmental regulation traditionally has been a matter of state authority.”). Federal courts are “highly deferential to state law in areas traditionally regulated by the states” when assessing whether federal law preempts state laws regulating those areas. Id. To succeed on their preemption claims, then, the RMFU Plaintiffs must provide “clear evidence” that Congress intended to preempt the LCFS when enacting the EISA, or that they actually conflict with one another. Id. (quoting Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 885, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000)). 2. Analysis a. The Court’s previous preemption finding The Court previously found that RMFU Plaintiffs stated a conflict preemption claim. See Rocky Mountain Farmers Union v. Goldstene, 719 F.Supp.2d 1170, 1195 (E.D. Cal. 2010). RMFU Plaintiffs correctly argue that holding remains the law of the ease and, accordingly, Defendants’ motion to dismiss the preemption claims in the TAC should be denied. See Doc. 384 at 17. Defendants urge the Court to reconsider its prior holding., See Doc. 387 at 7. The law of the case doctrine generally precludes a' court from “reconsidering an issue that already has 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). Nonetheless, “[a] court may have discretion to depart from the law of the case where ... the first decision was clearly erroneous.” United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). For the reasons discussed below, the Court concludes its prior holding that Plaintiffs have stated a conflict preemption' claim was erroneous, and therefore declines to find it controlling here. b. The geographic regulations do not preempt the LCFS The geographic regulations provide in relevant part: “Regardless of the date of promulgation, the regulations promulgated under [§ 7545(o )(2)(A)(i) ] ... shall not ... restrict geographic areas in which renewable fuel may be used.” As Defendants correctly point out, this provision applies only to the EPA and any regulations it promulgates. See Minn.'- Auto. Dealers Ass’n v. Stine, Civil No,. 15-2045 (JRT/KMM), 2016 WL 5660420, at *10 (D. Minn. Sept. 29, 2016) (“§ 7545(o )(2)(A)(iii)(II)(aa), which prohibits the imposition of geographical restrictions ... applies] only to EPA.”); Am. Fuel & Petrochemical Mfrs. v. O’Keeffe, 134 F.Supp.3d 1270, 1288 (D. Or. 2015) (“The Oregon Program is also not an EPA regulation, such that the anti-geographic restriction provision embodied in [§ 7545(o )(2)(A)(iii)(II)(aa) ] is not implicated.”) (citation omitted). “If Congress intended to limit a state’s ability to impose ... geographical restrictions, it could have done so.” Stine, 2016 WL 5660420, at *10. RMFU Plaintiffs do not address the issue in their opposition. RMFU Plaintiffs therefore do not provide — and the Court cannot find — anything that suggests the. geographic restrictions preempt- the LCFS. c. Section 7545(o) does not conflict with and thus does not preempt the LCFS The RMFU Plaintiffs’ remaining two arguments, concern whether certain provisions in § 7545(o) conflict with the LCFS. In their opposition, the RMFU Plaintiffs do not address their argument concerning how the LCFS allegedly conflicts with the EPA’s discretion to adjust or waive certain GHG reduction requirements, as provided in §§ 7545(o)(4) and 7545(o)(7), respectively. As discussed in more detail below, these provisions, like those contained in § 7545(o )(2)(A) (which is the exclusive focus of RMFU Plaintiffs’ briefing), pertain only to the RFS, which does not conflict with the LCFS. Congress enacted the RFS in 2005 “[i]n an attempt to increase the quantity of renewable fuels in the marketplace.” Am. Petro. Inst. v. Cooper, 718 F.3d 347, 351 (4th Cir. 2013). Congress “authorized [the EPA] to adopt regulations to mandate supplies such as gasoline importers and refiners ... to offer for sale renewable fuel, e.g., ethanol.” Id. Under the RFS, numerous fuels are considered “renewable.” See § 7545(o )(1)(J). “The EPA is charged with determining, annually, how much .renewable fuel should .enter the market place, and assigning volume-based quotes to obligated entities in order to meet the annual requirement.” Cooper, 718 F.3d at 351. “In 2007, Congress amended [the RFS] both to significantly increase use of renewable fuel and to ensure this increase would reduce greenhouse-gas emissions and thereby ‘lower the risk of climate change.’” Nat’l Biodiesel Bd. v. E.P.A., 843 F.3d 1010, 1013-14, (D.C. Cir. 2016) (quoting 75 Fed. Reg. 14,670, 14,799). Section 7545(o )(2)(A)(i) provides in relevant part: Not later than 1 year after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure that transportation fuel sold or introduced into commerce in the United States (except in noncontiguous States or territories), on an annual average basis, contains at least the applicable volume of renewable fuel, advanced biofuel, cellulosic biofuel, and biomass-based diesel, determined in accordance with sub-paragraph (B) and, in the case of any such renewable fuel produced from new facilities that commence construction after December 19, 2007, achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions. The RMFU Plaintiffs interpret this provision as Congress ensuring that producers of “grandfathered ethanol” (¿a,-ethanol produced in facilities that were constructed prior to the EISA’s December 19, 2007 enactment) are exempt from GHG emissions controls. See Doc. 384 at 18-19. RMFU Plaintiffs contend that Congress intended this, in part, to guarantee a market for ethanol produced at “grandfathered” facilities. See TAC ¶¶ 68-70; Doc. 384 at 18-29. According to the RMFU Plaintiffs, the LCFS conflicts With this goal because its “inevitable long-term effect ,.. [is] reducing or altogether ending the California market for corn ethanol from grandfathered plants that do not reduce carbon intensity to California’s satisfaction.” Id. at 20; see also id. at 18. Put bluntly, the RMFU Plaintiffs provide virtually no authority to support their position, whereas there is substantial authority that demonstrates the RFS not only does not preempt the LCFS, but that Congress intended to allow state legislation like the LCFS when enacting the Clean Air Act (“CAA”) and the EISA. First, the plain language of § 7545(o )(2)(A)(i) does not support the RMFU Plaintiffs’ position. Nothing in the provision suggests that Congress intended the RFS to ensure market access or stability for ethanol (grandfathered or not). That provision does provide that “grandfathered” renewable fuel, including ethanol, is exempt from the RFS’s GHG requirements. But, with regard to those requirements, the provision simply provides that renewable fuel produced after December 19, 2007 must achieve “at least a 20 percent reduction in lifecycle [GHG] emissions compared to baseline lifecycle [GHG] emissions.” § 7545(2)(A)(i) (emphasis added). “Baseline lifecycle GHG emissions,” in turn, “means the average lifecycle [GHG] emissions ... for gasoline or diesel ... sold or distributed as transportation fuel in 2005.” § 7545(o )(1)(C). The provision therefore contemplates only a minimum requirement that creates a floor (as opposed to a ceiling) for GHG emissions reductions from non-grandfathered fuels for the RFS; it makes no guarantees for any grandfathered fuel. See O’Keeffe, 134 F.Supp.3d at 1288 (“that Congress elected to .exempt such facilities from the requirement that certain fuels achieve a 20% reduction in lifecycle GHG emissions does not confer upon them a preferred or dominant status”). Nor does the RFS require that its mandated renewable fuel volumes be satisfied by any particular fuel. If Congress intended to ensure a market for ethanol (grandfathered or otherwise), it could have structured the RFS so that a fixed amount of ethanol was required to satisfy its renewable fuels volume requirements. More importantly, it is silent as to whether a state may nonetheless subject grandfathered fuels to GHG regulations. There is no indication that the RFS in general or § 7545(o )(2)(A)(i) in particular were intended to protect or ensure a market for ethanol. See id. (“the volume requirements for renewable fuel set in [§ 7545(o )(2)(A)(i) ] do not include a minimum amount that must be met with corn ethanol generally, let alone from [grandfathered] corn ethanol”). Other aspects of the CAA and the EISA, as well as the EPA’s rulemaking proceedings concerning the RFS, show that Congress did not intend for the RFS to preempt state legislation like the LCFS. See Exxon Mobil, 217 F.3d at 1255 (“The statutory framework surrounding a provision as well as the structure and purpose of the statute as a whole are relevant to analyzing the scope of preemption.”) (citation and quotation marks omitted). “The central goal of the [CAA] is to reduce ah’ pollution.” Oxygenated Fuels Ass’n, Inc. v. Davis, 331 F.3d 665, 670 (9th Cir. 2003) (citing 42 U.S.C. § 7401(b)). The CAA aims “to encourage and assist the development and operation of regional air pollution prevention and control programs,” 42 U.S.C. § 7401(b)(4), and “to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this chapter, for pollution prevention.” Id. § 7401(c). Because the CAA “generally seeks to preserve state authority,” Davis, 331 F.3d at 670, it “employs a ‘cooperative federalism’ structure under which the federal government develops baseline standards that the states individually implement and enforce.” Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d Cir. 2013). “Congress set out the Act’s purposes and objectives in a section of the Act labeled ‘Congressional findings and declaration of purpose,’ which provides in part ‘that air pollution prevention ... and air pollution control at its source is the primary responsibility of States and local' governments.’ ” Merrick v. Diageo Americas Supply, Inc., 805 F.3d 685, 690 (6th Cir. 2015) (quoting 42 U.S.C. § 7401(a)(3)): Further, the CAA “contains á separate savings clause entitled ‘Retention of State authority,’ codified at 42 U.S.C. § 7416,” which is known as “the Clean Air Act’s ‘states’ rights savings clause.’ ” Id. at 191. As the Sixth Circuit explained: The clause saves from preemption “the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or' abatement of air pollution,” except that the “State or political subdivision may not adopt or enforce any emission standard or limitation” that is “less stringent” than a standard or limitation under an applicable implementation plan or specified federal statute. Merrick, 805 F.3d at 690 (citing 42 U.S.C. § 7416). This “sweeping” provision thus “explicitly protects the authority of the states to regulate air pollution.” Exxon Mobil Corp. v. U.S. E.P.A., 217 F.3d 1246, 1254, 1255 (9th Cir. 2000); see also id. at 1254 (observing that the CAA “makes clear that the states retain the leading role in regulating matters of health and air quality”). Congress enacted the EISA ⅛ 2007, which amended parts of the CAA. See generally Pub. L. No. 110-410 (codified as amended at § 7545(o)). The purpose of the EISA is [t]o move the United States toward greater energy independence and security, to increase the production of clean renewable fuels, to protect consumers, to increase the efficiency of products, buildings, and vehicles, to promote research on and deploy greenhouse gas capture and storage options, and to improve the energy performance of the Federal Government, and for other purposes. Id. Relevant here, Section 204(b) of the EISA provides in full: EFFECT ON AIR QUALITY AND OTHER ENVIRONMENTAL ■ REQUIREMENTS. — Except as provided in section 211(o)(12)' of the Clean Air Act, nothing in the amendments made by this title to section 211(o) of the Clean Air Act shall be construed as superseding, or limiting, any more environmentally protective requirement under the Clean Air Act, or under any other provision of State or Federal law or regulation, including any environmental law or regulation. The plain language of this savings clause, like the one contained in the CAA, preserves the right of the states to enact their own legislation that is more restrictive than the EISA. Simply put, both the CAA’s and the EISA’s savings clauses evince Congress’s express intent not to preempt state legislation aimed at improving a state’s air quality. See RMFU, 730 F.3d at 1097 (“Congress has expressly empowered California to take a leadership role as to air quality”). The RMFU Plaintiffs’ interpretation of § 7545(o) (specifically, § 7545(o )(A)(2)(i)) does not suggest any contrary intent, and the RMFU Plaintiffs do not point to anything else that does. The RMFU Plaintiffs thus fall far short from providing any authority that indicates Congress’s “clear and manifest purpose” in enacting the RFS was to preempt the states’ “traditional role” of regulating their air quality. Nonetheless, as the RMFU Plaintiffs correctly point out, a state law may still be preempted if it actually conflicts with federal law. Davis, 331 F.3d at 672. “Whatever the purpose ,or purposes of the state law, preemption analysis cannot ignore the effect of the challenged state action on the pre-empted field.” Gade v. Nat'l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107, 112, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). Accordingly, -the Court must determine whether the effects of the LCFS interfere with the “goals and objectives” of the EISA, as well as the “methods” it employs to, reach them. See Davis, 331 F.3d at 672-73; Int'l Paper Co. v. Ouellette, 479 U.S. 481, 491, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). Much of the discussion above- is directly applicable to this analysis. This is so because the RMFU Plaintiffs’ primary argument as to whether the LCFS actually conflicts with the EISA-is premised on their assumption that Congress intended thé EISA to ensure a market for ethanol produced by corn grown in the Midwest, and guaranteed that grandfathered ethanol would not be subject to GHG regulations. As explained above, the plain language of the EISA makes no such guarantees. The RFS program, like the CAA in general, imposes a nationwide standard: it requires that at least a certain volume of particular fuels, including “renewable fuels” be sold in the United States each year. “Renewable fuel,” in turn, can be derived from- a number of different sources — not just ethanol. Thus, the RFS’s volume requirements theoretically could be met entirely without ethanol. That the RFS imposes GHG emissions requirements only on non-grandfathered facilities does not mean that Congress intended to ensure that those facilities were entirely exempt from all GHG regulations, whatever their source. Cf. Doc. 379-1, Environmental Protection Agency, Renewable Fuel Standard Program (RFS2): Summary and Analysis of Comments (Feb, 2010) (“RFS Summary”), at 7-1 (“[T]hese [RFS] thresholds do not constitute a specific control on [GHGs] for transportation fuels (such as a low - carbon fuel standard)”), available at https://www.epa.gov/ sites/production/files/2015-08/documents/ 420rl0003.pdf. As the EPA recognized, the purpose of the RFS is “to , significantly increase the amount of renewable fuel used as transportation fuel over time, particularly fuels with the lowest, lifecycle GHG emissions, in the transportation fuel supply.” 80 Fed. Reg. 33100-01, 33102 (June 10, 2015) (emphasis added). And as thé RMFU Plaintiffs emphasize,' the LCFS attempts to do precisely the same thing. The LCFS therefore does not conflict with the RFS’s goal of reducing GHG emissions. If anything, the programs are complementary. Cf. 80 Fed. Reg. 33,100-01, 33,103 (observing that the RFS “is complemented and supported by ... myria'd efforts and initiatives at the regional and local level”). ' Defendants argue statements ' EPA made during the RFS’s notice and comment rulemaking proceedings directly undermine the RMFU Plaintiffs’ theory that the RFS preempts the LCFS, and that the Court must defer to the EPA’s interpretation. Although the Court disagrees with Defendants that these statements are entitled to deference or otherwise constitute any binding authority, they are consistent with and provide further support for the Court’s interpretation of the RFS. Cf. Geier, 529 U.S. at 883, 120 S.Ct. 1913 (holding that agency’s amicus brief stating that state law would actually conflict with its regulation is entitled to “some weight” because it “is likely to have a thorough understanding. of its own regulation and its objectives and is uniquely qualified to comprehend the likely impact of state requirements.”) (citation and quotation marks omitted). At least two comments from the EPA explicitly ■ support Defendants’ position that the RFS does not supplant a state’s ability to enact its own legislation to improve its air quality through fuel regulations, and thus does not preempt the LCFS. First, one of the Plaintiffs in this ease, Renewable Fuels Associated, commented that the “EPA should preempt state programs designed to address carbon content and lifecycle analysis of fuels. [Renewable Fuels Association] believes that EPA should use its authority to preempt state low carbon fuel standards.” Doe. 379-1, Environmental Protection Agency, Renewable Fuel Standard Program (RFS2): Summary and Analysis of Comments (Feb. 2010) (“RFS Summary”), at 13-14, available at https://www.epa.gov/sites/ production/files/2015-08/documents/420r 10003.pdf. CARB made the following comment: [CARB] would like to see future RFS proposals reflect the existing standards in place in California’s LCFS (low carbon fuel standard) in a variety of ways: California’s LCFS avoids volumetric requirements and instead promotes carbon intensity reductions from a broad mix of fuels without applying set limits to individual fuels. No fuel production is “grandfathered”, rather the LCFS applies a carbon intensity performance standard. Id. at 13-15. In response to these (and other) comments, the EPA responded: Issues associated with State LCFS programs, and potential future Federal fuel standards, are not germane to the final RFS program. However, where possible we have .attempted to structure the RFS2 program so as to be compatible with existing State LCS programs, including coordination on lifecycle modeling. Id. Thus, the EPA was explicitly asked— by a Plaintiff in this case — to preempt state low carbon fuel standards, and was aware of California’s LCFS when asked. The EPA not only expressly declined to do so, but concluded that state low carbon fuel standard programs are irrelevant to the RFS and, in any event, the EPA has intentionally structured the RFS to be “compatible” with them. Finally, the RMFU Plaintiffs make passing arguments that the LCFS conflicts with the EISA’s goal of decreasing the United States’ dependence on foreign oil, thereby increasing the country’s energy dependence. In support, the RMFU Plaintiffs point to Congress’s finding that “the production of transportation fuels from renewable energy would help the United States ... reduce the dependence of th¿ United States on energy imported from volatile regions of the world that are politically unstable,” Pub. L. 110-140, § 806(a)(4), and note that one of the EISA’s goals is[t]o move the United States toward greater energy independence.” Pub. L. 110-140. The RMFU Plaintiffs, however, provide no facts or explanation showing that the LCFS actually conflicts with this goal. For these reasons, the Court finds that its prior holding.that the RMFU Plaintiffs had stated a claim that the LCFS is preempted was clearly erroneous; the RMFU Plaintiffs have not stated and cannot state any. preemption claim against the LCFS. Accordingly, the Court DISMISSES their preemption claims WITHOUT LEAVE TO AMEND because amendment would be futile. D. Commerce Clause As noted above, the only remaining claim the AFPM Plaintiffs assert is their claim that the ethanol provisions of all versions of the LCFS discriminate against interstate commerce in purpose and effect in violation of the Commerce Clause. The RMFU Plaintiffs assert the same claim, and also assert that the ethanol provisions of all versions of the LCFS fail under Pike. See Doc. 384 at 2. As to their claim that the LCFS discriminates in purpose and effect, the thrust of Plaintiffs’ argument is that the LCFS, by design and practical effect, penalizes non-California ethanol producers, specifically those from the Midwest, while benefitting California ethanol producers by assigning higher carbon intensity (“Cl”) scores to the former and lower Cl scores to the latter through its “lifecycle” analysis of fuels, which causes chemically identical fuels sold in California to have varying Cl scores due solely to where they are produced. See, e.g., TAC ¶ 87; SAC ¶¶ 35, 46-50, 94. According to Plaintiffs, the LCFS is intentionally designed to make ethanol produced in the Midwest (and elsewhere) more expensive, and eventually will drive a number of non-California ethanol producers out of the California market entirely. This is due, in part, to the regulation’s credits-deficits scheme, which inherently benefits California ethanol producers at the expense of out-of-state producers by ineentivizing consumers to purchase California ethanol, even if it is physically identical to Midwest ethanol. SAC ¶54. In sum, Plaintiffs allege the LCFS “has erected a barrier to Midwest corn ethanol around its borders” in an effort to benefit California ethanol. TAC ¶ 87; SAC ¶56. The RMFU Plaintiffs’ Pike claim builds on these allegations. The RMFU Plaintiffs argue that, in addition to the ethanol provisions’ discriminatory effects, the LCFS provides no benefit to California because it “will not result in any measurable global climate change, nor in any measurable reduction of the effects of global warming.” SAC ¶ 92; Doc. 384 at 27 (“the LCFS will have virtually no effect on the environment”). The RMFU Plaintiffs therefore contend the LCFS’s burdens on interstate commerce far outweigh its benefits to California. Defendants move to dismiss both claims under Rule 12(b)(6). Distilled, Defendants argue (1) RMFU precludes the Plaintiffs’ claim that the LCFS discriminates in purpose and effect and, (2) regardless, neither states a claim. 1. Whether RMFU bars Plaintiffs’ discriminatory purpose and effect claim against the ethanol provisions The parties correctly observe that the Ninth Circuit not only did not decide Plaintiffs’ claim that the ethanol provisions of the LCFS discriminate in purpose and effect, but remanded it for this Court’s consideration. See RMFU, 730 F.3d at 1107 (“We remand the case for the district court to determine whether the ethanol provisions discriminate in purpose or effect and, if not, to apply the Pike balancing test.”). Defendants nonetheless argue that the Ninth Circuit’s holding that the Original LCFS’s crude oil provisions do not discriminate in purpose or effect has pre-clusive effect here under the law of the case. Plaintiffs, on the other hand, argue that holding and its underlying reasoning does not “apply to the ethanol provisions, because those provisions have a different purpose and effect.” Doc. 383 at 23; see also Doc. 384 at 24. As a preliminary matter, with regard to Plaintiffs’ discriminatory purposes claim, the parties agree that there is no material difference between the ethanol provisions contained in the three versions of the LCFS. See Dóc. 380-1 at 27; Doc. 383 at 23; Doc. 384 at 26. Plaintiffs do, however, assert the 2015 LCFS has more of a discriminatory effect than did the Original LCFS because of slight differences in how it permits Cl score calculations for etha-nols. See id. (“Thus, the amended LCFS continues the same discriminatory purposes and effects of the Original LCFS. Finally, to the extent that the 2015 LCFS’s ethanol provisions are different than those of the Original LCFS, they only heighten the discriminatory impact.”). Even though the majority opinion in RMFU did not address ■ Plaintiffs’ claim that the Original LCFS’s ethanol provisions discriminate in purpose and effect, the majority thoroughly reviewed and discussed the purposes of the Original LCFS in general and its ethanol provisions in particular when assessing Plaintiffs’ claims that the ethanol provisions .were facially discriminatory and impermissibly regulated extraterritorially. In so doing, the majority explicitly — and repeatedly — held that the ethanol provisions were not purr posefully discriminatory, nor was , the LCFS. generally. And although part of the panel’s analysis of the crude oil provisions,- the full .panel rejected Plaintiffs’ “pull[ing] a few quotes from an expansive record [to] - show CARB’s [alleged] discriminatory purpose,” finding that those quotes “do not plausibly relate to a discriminatory design and are ‘easily understood, in context, as economic defense of a [regulation] genuinely proposed for environmental reasons.’ ” Id. at 1100 n.13 (citation omitted). The panel considered the LCFS’s legislative materials that Plaintiffs provided to support their claim that the crude oil provisions were intentionally designed to be discriminatory against out-of-state interests, and the full panel found there was no explicit discriminatory purpose behind them. Id. at 1100. Instead, the panel concluded that “CARB’s stated purpose was genuine. There was no protectionist purpose, no aim to insulate California firms from out-of-state competition.” Id. The Court has reviewed thoroughly the quotes from the LCFS’s legislative that Plaintiffs cited in their briefs to the Ninth Circuit with those they cited in the SAC, the TAC, and their oppositions. The only quote Plaintiffs have cited that the Ninth Circuit did hot 'consider is from a CARB press release. See Doc. 383 at 21 (citing CARB, California Adopts Low . Carbon Fuel Standard (Apr. 23, 2009)) (“Production of fuels within' the state will also keep consumer dollars local by reducing the need to make, fuel purchases from beyond its borders.”), available at https://www. arb.ca.gov/newsrel/2009/nr042309b.htm). Even assuming this press release constitutes an accurate reflection of the California legislature’s and CARB’s intent behind the LCFS, it is, at best, yet another “ ‘economic defense of a [regulation] genuinely proposed for environmental reasons.’ ” RMFU, 730 F.3d at 1100 n.13 (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n. 7, 101 S.,Ct. 715, 66 L.Ed.2d 659 (1981)) (“We will not. invalidate a state statute under the Equal Protection Clause merely because some legislators sought to obtain votes for the measure on the basis of its beneficial side effects on state industry.”). Plaintiffs have not pointed to any portion of the LCFS’s legislative history "that the Ninth" Circuit did not consider. Thus, to the extent Plaintiffs rely on the Original LCFS’s legislative history to support their discriminatory purpose claim, RMFU forecloses it. Judge Murguia’s. dissent from the majority opinion holding that the .ethanol provisions are not' facially, discriminatory bolsters this conclusion. See RMFU, 730 F.3d at 1108 (Murguia, J.," dissenting). In her view, the majority erroneously “put[ ] the cart before the horse and considered] California’s reasons for distinguishing between in-state and out-of-state, ethanol before examining the text of the statute to determine if it 'facially discriminates.” Id. (emphasis added). She found “[t]his approach is inconsistent with Supreme Court precedent, which instructs that we must determine whether’ the regulation is discriminatory before we address the purported reasons for the discrimination.” Id. (citation omitted). Six judges dissented from the denial of rehearing RMFU en banc. Rocky Mountain Farmers Union v. Corey, 740 F.3d 507, 512 (9th Cir. 2014) (“RMFU Denial”). The en banc dissent characterized the RMFU majority opinion as holding that the Original LCFS’s “ethanol regulations do not facially discriminate against interstate commerce because California has ‘good and non-discriminatory reason[s]’ for treating out-of-state ethanol differently.” Id. at 514 (M. Smith, J., .dissenting from denial of rehearing en banc) (quoting RMFU, 730 F.3d at 1108). The dissent agreed -with Judge Murguia that this holding “puts the cart before the horse,” because “[t]he purpose of, or justification for, a law has no bearing on whether it is facially discriminatory.’” Id. (quoting Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)). The dissent acknowledged that the panel remanded the case to this Court to consider Plaintiffs’ claim that the ethanol provisions discriminate in purpose and effect, but opined that- the outcome of. that issue is “predestined” given the panel’s holding that the LCFS was enacted with “good and nondiscriminatory reason[s].’ ” Id. (quoting RMFU, 730 F.3d at 514). Judge Gould, who authored RMFU, had “a simple response to this critique.” Id. at 509. He explained: We reviewed this case at the summary judgment stage. As such, we had to take as true all facts presented by California and reasonable inferences therefrom. Our statement, then, about