687 F.3d 393 (D.C. Cir. 2012), 10-1107, National Chicken Council v. E.P.A.

Docket Nº:10-1107.
Citation:687 F.3d 393
Opinion Judge:BROWN, Circuit Judge:
Party Name:NATIONAL CHICKEN COUNCIL, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Growth Energy, et al., Intervenors.
Attorney:Catherine E. Stetson argued the cause for petitioners National Chicken Council, National Meat Association, and National Turkey Federation. With her on the briefs were Mary Helen Wimberly, William L. Wehrum, and Lewis F. Powell III. James B. Dougherty, Jonathan F. Lewis, Helen D. Silver, and Ann B...
Judge Panel:Before: HENDERSON, BROWN, and KAVANAUGH, Circuit Judges.
Case Date:July 20, 2012
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 393

687 F.3d 393 (D.C. Cir. 2012)

NATIONAL CHICKEN COUNCIL, et al., Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent

Growth Energy, et al., Intervenors.

No. 10-1107.

United States Court of Appeals, District of Columbia Circuit.

July 20, 2012

Argued Feb. 13, 2012.

Page 394

On Petition for Review of Final Agency Action of the Environmental Protection Agency.

Catherine E. Stetson argued the cause for petitioners National Chicken Council, National Meat Association, and National Turkey Federation. With her on the briefs were Mary Helen Wimberly, William L. Wehrum, and Lewis F. Powell III.

James B. Dougherty, Jonathan F. Lewis, Helen D. Silver, and Ann B. Weeks were on the briefs for petitioners Friends of the Earth, Inc. and National Wildlife Federation.

Daniel R. Dertke, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Ignacia S. Moreno, Assistant Attorney General.

John C. O'Quinn argued the cause for intervenors in support of respondent. With him on the brief were William H. Burgess, David B. Salmons, Sandra P. Franco, Bryan M. Killian,

Page 395

Charles H. Knauss, Shannon S. Broome, Christopher D. Jackson, Alex D. Menotti, Roger R. Martella, Jr., Thomas G. Echikson, and Rachel D. Gray. Jeffrey B. Clark, Sr., Stuart A. Drake, and Thomas R. Lotterman entered appearances.

Alan Kashdan was on the brief for amicus curiae Government of Canada in support of respondent.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit Judges.

OPINION

BROWN, Circuit Judge:

The National Chicken Council, National Meat Association, and National Turkey Federation petition for review of EPA's interpretation of a provision in the Energy Independence and Security Act of 2007 (" EISA" ). Because the petitioners fail to show that a favorable ruling would redress their claimed injuries, we dismiss their petition on standing grounds.1

The EISA directed EPA to promulgate regulations ensuring that transportation fuel sold in the United States contains certain minimum levels of renewable fuel on an average annual basis. See 42 U.S.C. § 7545( o )(2)(A)(i), ( o ) (2)(B)(i). To fulfill that mandate, EPA modified its existing trading program, under which producers generate credits called Renewable Identification Numbers (" RINs" ) for each gallon of renewable fuel. See 40 C.F.R. § 80.1426. EPA required refiners and importers of transportation fuel to purchase the number of RINs needed to satisfy their proportional share of the EISA's annual targets. See 75 Fed. Reg. 14,670, 14,676 (Mar. 26, 2010).2

Ethanol qualifies as a " renewable fuel" under certain circumstances. Ethanol from a production plant that commenced construction after December 19, 2007 (the date of the EISA's enactment) counts as renewable fuel if it " achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions" in comparison to fossil fuels. 42 U.S.C. § 7545( o )(2)(A)(i). Ethanol from a plant that commenced construction on or before December 19, 2007 is not subject to that requirement; it counts as renewable fuel whether it reduces emissions or not. Id. In policy speak, these older ethanol plants are " grandfathered in."

The statutory provision at issue in this case is an extension of the EISA's grandfather clause. It states that, " [f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance ... with the 20 percent reduction requirement [in 42 U.S.C. § 7545( o )(2)(A)(i) ]." 42 U.S.C. § 7545, Transition Rules. In its Notice of Proposed Rulemaking, EPA claimed the provision was ambiguous because it did " not specify whether [ethanol plants fired with natural gas and/or biomass] are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely." 74 Fed. Reg. 24,904, 24,925 (May 26, 2009). After considering public comments, EPA adopted the latter interpretation in its Final

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Rule. It read the provision to mean that ethanol plants fired with natural gas and/or biomass that commenced...

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