489 F.3d 1279 (D.C. Cir. 2007), 05-1188, Public Citizen, Inc. v. National Highway Traffic Safety Admin.

Docket Nº:05-1188, 05-1265, 05-1294, 05-1309, 05-1391.
Citation:489 F.3d 1279
Party Name:PUBLIC CITIZEN, INC., et al., Petitioners v. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, et al., Respondents Alliance of Automobile Manufacturers, Intervenor.
Case Date:June 15, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1279

489 F.3d 1279 (D.C. Cir. 2007)

PUBLIC CITIZEN, INC., et al., Petitioners



Alliance of Automobile Manufacturers, Intervenor.

Nos. 05-1188, 05-1265, 05-1294, 05-1309, 05-1391.

United States Court of Appeals, District of Columbia Circuit.

June 15, 2007

Argued Feb. 16, 2007.

Page 1280

[Copyrighted Material Omitted]

Page 1281

[Copyrighted Material Omitted]

Page 1282

[Copyrighted Material Omitted]

Page 1283

On Petitions for Review of Orders of the United States Department of Transportation.

Marc D. Machlin argued the cause for petitioners. With him on the briefs were Charles H. Carpenter, Peter H. Gunst, Brian Wolfman, and Allison M. Zieve. Christopher J. Huber entered an appearance.

H. Thomas Byron, III, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Peter D. Keisler , Assistant Attorney General, Douglas N. Letter , Attorney, Paul M. Geier, Assistant General Counsel, National Highway Traffic Safety Administration, and Lloyd S. Guerci, Assistant Chief Counsel.

Erika Z. Jones argued the cause for intervenor Alliance of Automobile Manufacturers in support of respondents. With her on the brief were Adam C. Sloane and John T. Whatley.

Before: SENTELLE, RANDOLPH and KAVANAUGH, Circuit Judges.


Kavanaugh, Circuit Judge

In a hurry as they tend to the responsibilities of work and family, many American drivers do not regularly check the tire pressure on their cars. This can cause problems for the drivers and their passengers--and for others on the road--because driving a car with severely under-inflated tires increases the risk of serious accidents. After a series of accidents and deaths caused by tire blowouts in the late 1990s, Congress decided to make it easier for drivers to maintain adequate tire pressure. Congress enacted the Transportation Recall Enhancement, Accountability, and Documentation Act, known as the TREAD Act. This legislation required the Secretary of Transportation to "complete a rulemaking for a regulation to require a warning system in new motor vehicles to indicate to the operator when a tire is significantly under inflated." Pub. L. No. 106-414, § 13, 114 Stat. 1800, 1806 (2000).

After notice-and-comment rulemaking, the Secretary of Transportation, acting

Page 1284

through the National Highway Transportation Safety Administration, adopted Federal Motor Vehicle Safety Standard 138. See 49 C.F.R. § 571.138. The new standard requires automakers to include an automatic tire pressure monitoring system that turns on a warning light when tire pressure falls below a pre-determined level. See Tire Pressure Monitoring Systems, 70 Fed. Reg. 18,136, 18,136-37 (Apr. 8, 2005). The requirement is being phased in; most cars now being manufactured must meet the new standard, and nearly all cars manufactured after September 2007 must meet it. See id. at 18,189.

Automakers have accepted the new standard without court challenge. But the 130,000-member organization Public Citizen, four major tire makers, and the Tire Industry Association (which includes tire manufacturers and retailers) have petitioned for review, arguing that the rule does not meet statutory requirements. The key initial question for us is petitioners' standing under Article III of the Constitution. The tire industry petitioners' theory of how Standard 138 might cause them harm is far too attenuated, and we conclude that they lack standing. For its part, Public Citizen seeks to establish standing based on an alleged increased risk of harm to its members who drive or ride in cars. As we will explain, we must seek supplemental submissions to determine whether Public Citizen has standing.


Federal highway safety laws aim to "reduce traffic accidents and deaths and injuries" to persons "resulting from traffic accidents." 49 U.S.C. § 30101. To meet this goal, the Secretary of Transportation is authorized to prescribe motor vehicle safety standards. Id. § 30111(a). As to tires, the relevant federal statute requires that automakers install tires capable of supporting the vehicle when it is loaded with a reasonable amount of luggage and the maximum number of passengers the vehicle is designed to carry. See id. § 30123(c). Under the Secretary of Transportation's Safety Standard 110, which governs tire selection, automakers must print the recommended tire inflation pressure on a placard, often visible in the driver's side door jamb; this is called the "placard pressure." See 49 C.F.R. § 571.110, S4.3.

In August 2000, Firestone (a predecessor of petitioner Bridgestone/Firestone North American Tire) began recalling 14.4 million tires because of numerous complaints of tire failure and resulting accidents on Ford sport utility vehicles equipped with Firestone tires. In the aftermath of that headline-grabbing recall, Congress enacted and President Clinton signed the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act. Pub. L. No. 106-414, 114 Stat. 1800 (2000). The TREAD Act imposed new requirements governing tire safety. In particular, Section 13 of the TREAD Act instructed the Secretary to "complete a rulemaking for a regulation to require a warning system in new motor vehicles to indicate to the operator when a tire is significantly under inflated." Id. § 13, 114 Stat. at 1806.

The Secretary, acting through the National Highway Traffic Safety Administration, published a proposed rule implementing the TREAD Act directive. See Tire Pressure Monitoring Systems, 66 Fed. Reg. 38,982, 38,982-83 (proposed July 26, 2001). NHTSA set forth evidence that driving on severely under-inflated tires--that is, tires insufficiently inflated to bear the load placed on them--can result in a number of serious consequences. An under-inflated tire heats up when the car is driven, and heat weakens tires, raising the risk of tire

Page 1285

failure. See id. at 38,985-86. In addition to contributing to tire blowouts, under-inflated tires play a role in various kinds of crashes, including those caused by "an increase in stopping distance; skidding and/or a loss of control of the vehicle in a curve or in a lane change maneuver; or hydroplaning on a wet surface." Id. at 38,986. Moreover, under-inflated tires do not last as long as those driven at adequate pressures, and cars with under-inflated tires burn more fuel than cars with correctly inflated tires. Id.

After receiving comments, NHTSA published a final rule in 2002. See Tire Pressure Monitoring Systems, 67 Fed. Reg. 38, 704, 38, 704-05 (June 5, 2002). Public Citizen sought review in the United States Court of Appeals for the Second Circuit, which vacated the rule as inconsistent with the TREAD Act and the Administrative Procedure Act. See Pub. Citizen, Inc. v. Mineta, 340 F.3d 39, 42, 62 (2d Cir. 2003). On remand, NHTSA sought comments on a new version of the rule. See Tire Pressure Monitoring Systems, 69 Fed. Reg. 55, 896, 55, 896-97 (proposed September 16, 2004). On April 8, 2005, NHTSA published the final rule establishing Federal Motor Vehicle Safety Standard No. 138. Tire Pressure Monitoring Systems, 70 Fed. Reg. 18,136, 18,136, reconsideration granted in part, 70 Fed. Reg. 53,079 (September 7, 2005).

Standard 138 requires automakers to install tire pressure monitors that can detect when the pressure in one or more of the vehicle's tires is (i) 25 percent or more below placard pressure or (ii) 20 psi or less, for most cars. See id. at 18,143. Under Standard 138, the tire pressure monitor must cause the dashboard warning light to turn on within 20 minutes after a tire becomes significantly under-inflated (that is, after a tire reaches the warning threshold). See id. at 18, 147-48. The light stays on until the driver corrects the tire pressure.

The manufacturer must certify that the monitor works for the vehicle's first tire set, but not for replacement tires. When the car is fitted with replacement tires for which the monitor cannot detect under-inflation, the monitor must trigger a malfunction light (distinct from the light indicating significant under-inflation) that does not switch off unless the driver installs compatible tires. See id. at 18,160. NHTSA estimated that, at "the high end," as many as 10 percent of all replacement tires may be incompatible with existing monitors. Office of Regulatory Analysis & Evaluation, U.S. Dep't of Transp., Final Regulatory Impact Analysis: Tire Pressure Monitoring System FMVSS No. 138, at II-10 to II-11 (2005).

Standard 138 also requires automakers to include an owner's manual statement highlighting the presence and function of the tire pressure monitor. 70 Fed. Reg. at 18, 164-66. In addition, the owner's manual must inform the driver that each tire "should be checked monthly when cold" and should be inflated to the placard pressure; the manual also must note the dangers of driving on significantly under-inflated tires. Id. at 18, 166.

The monitor requirement applies to so-called new light vehicles - those weighing 10,000 pounds or less, including passenger cars, sport utility vehicles, and light trucks--which for convenience we refer to simply as "cars." See id. at 18,136-37. NHTSA began phasing in the standard as of October 2005, and all cars manufactured after September 1, 2007--subject to narrow exceptions--must comply with the standard's requirements. See Federal Motor Vehicle Safety Standards, 70 Fed. Reg. 53, 079, 53, 097 (September 7, 2005).

The members of the Rubber Manufacturers Association include the four individual

Page 1286

tire makers that are petitioners in this case. During the rulemaking for Standard 138, that Association filed a petition...

To continue reading