783 F.3d 1328 (D.C. Cir. 2015), 13-7171k, Abbas v. Foreign Policy Group, LLC

Docket Nº:13-7171k
Citation:783 F.3d 1328
Opinion Judge:Kavanaugh, Circuit Judge:
Party Name:YASSER ABBAS, APPELLANT v. FOREIGN POLICY GROUP, LLC AND JONATHAN SCHANZER, APPELLEES
Attorney:Claude D. Convisser argued the cause for petitioner Plant Oil Powered Diesel Fuel Systems, Inc. With him on the final joint opening brief were Theodore Hadzi-Antich and M. Reed Hopper. Claude D. Convisser was on the final reply brief for petitioner Plant Oil Powered Diesel Fuel Systems, Inc. Theo...
Judge Panel:Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit Judge, and GINSBURG, Senior Circuit Judge.
Case Date:April 24, 2015
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1291

783 F.3d 1291 (D.C. Cir. 2015)

DELTA CONSTRUCTION COMPANY, INC., ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT; CALIFORNIA CONSTRUCTION TRUCKING ASSOCIATION, INC., ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Nos. 11-1428, 11-1441, 12-1427, 13-1076

United States Court of Appeals, District of Columbia Circuit

April 24, 2015

Argued: January 9, 2015.

Page 1292

On Petitions for Review of Final Agency Actions of the Environmental Protection Agency and the Department of Transportation. On Petition for Review of Final Agency Action of the United States Environmental Protection Agency.

Claude D. Convisser argued the cause for petitioner Plant Oil Powered Diesel Fuel Systems, Inc. With him on the final joint opening brief were Theodore Hadzi-Antich and M. Reed Hopper.

Claude D. Convisser was on the final reply brief for petitioner Plant Oil Powered Diesel Fuel Systems, Inc.

Theodore Hadzi-Antich argued the cause for petitioners Delta Construction Company, Inc., et al., in case nos. 11-1428 and 13-1076. With him on the briefs was M. Reed Hopper.

Michele L. Walter and Daniel R. Dertke, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were Sam Hirsch, Acting Assistant Attorney General, Stuart F. Delery, Assistant Attorney General, Mark B. Stern, and H. Thomas Bryon, III, Attorneys, Steven E. Silverman, Attorney, U.S. Environmental Protection Agency, O. Kevin Vincent, Chief Counsel, National Highway Traffic Safety Administration, and Timothy H. Goodman, Acting Assistant Chief Counsel. Eric G. Hostetler, Attorney, U.S. Department of Justice, entered an appearance.

Sean H. Donahue, Vickie Patton, Graham McCahan, Peter Zalzal, and Benjamin Longstreth were on the brief for movant respondent-intervenors Environmental Defense Fund, et al., in support of respondents.

Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Robert W. Byrne, Senior Assistant Attorney General, Annadel A. Almendras, Supervising Deputy Attorney General, M. Elaine Meckenstock, Deputy Attorney General, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, David R. Sheridan, Assistant Attorney General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Matthew J. Dunn and Gerald T. Karr, Assistant Attorneys General, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Michael J. Myers, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul A. Garrahan, Acting Attorney-in-Charge, Douglas F. Gansler, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maryland, Roberta James, Assistant Attorney General, Martha Coakley, Attorney General at the time the brief was filed, Office of the Attorney General for the Commonwealth of Massachusetts, Carol Iancu, Assistant Attorney General, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea J. Schwartz, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Leslie R. Seffern, Assistant Attorney General, and Michael A. Cardozo, Christopher Gene King, and Carrie Noteboom, were on the brief for movant-intervenor States of California, et al.

Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit Judge, and GINSBURG, Senior Circuit Judge.

OPINION

Page 1293

PER CURIAM:

Acting pursuant to their respective statutory mandates, the Environmental Protection Agency (" EPA" ) and the National Highway Traffic Safety Administration (" NHTSA" ) issued coordinated rules governing the greenhouse gas emissions and fuel economy of cars and trucks. In Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 401 U.S.App.D.C. 306 (D.C. Cir. 2012), rev'd in part on other grounds sub nom. Utility Air Regulatory Group v. EPA,

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134 S.Ct. 2427, 189 L.Ed.2d 372 (2014), we upheld EPA's car emission standards. Now, a group of petitioners collaterally attacks these standards on procedural grounds, and an overlapping group challenges EPA's truck standards based on the same legal theory. Another petitioner challenges both agencies' regulations concerning trucks as arbitrary and capricious. As we explain below, however, we cannot reach the merits of any of these petitions.

I.

Section 202(a) of the Clean Air Act (" CAA" ) requires EPA to regulate air pollutants, including greenhouse gases, emitted " from any class or classes of new motor vehicles or new motor vehicle engines, which in [the EPA Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7521(a)(1); Massachusetts v. EPA, 549 U.S. 497, 532, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (" [G]reenhouse gases fit well within the Clean Air Act's capacious definition of 'air pollutant.'" ). EPA triggered this obligation in 2009 when it found that greenhouse gases " endanger both the public health and the public welfare of current and future generations" and that " emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare." See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Final Rule, 74 Fed.Reg. 66,496 (Dec. 15, 2009) (" Endangerment Finding" ). But " [b]ecause no available technologies reduce tailpipe [greenhouse gas] emissions per gallon of fuel combusted, any rule that limits tailpipe [greenhouse gas] emissions is effectively identical to a rule that limits fuel consumption." 76 Fed.Reg. 57,124-25. EPA's mandate therefore intersects with NHTSA's responsibility to promulgate average fuel efficiency standards for automobile manufacturers. 49 U.S.C. § 32902; 49 C.F.R. § 1.95. Given this, the two agencies worked together to generate functionally equivalent standards for greenhouse gas emissions and fuel economy. See Press Release, The White House, President Obama Announces National Fuel Efficiency Policy (May 19, 2009) (announcing cooperation between EPA and NHTSA); Presidential Memorandum, Improving Energy Security, American Competitiveness and Job Creation, and Environmental Protection Through a Transformation of our Nation's Fleet of Cars and Trucks (May 21, 2010) (directing EPA and NHTSA to work together on truck standards).

The first binding product of this collaboration was a joint Final Rule the agencies issued in 2010 for light-duty vehicles--or, translated from agency speak to English, cars. See Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, Final Rule, 75 Fed.Reg. 25,324 (May 7, 2010) (" Car Rule" ). While there are slight differences between the EPA greenhouse gas emission standards and the NHTSA fuel economy standards, see id. at 25,330 (explaining that only EPA's standard takes account of hydrofluorocarbon leakage from air-conditioning systems), " [t]hey represent a harmonized approach that will allow industry to build a single national fleet that will satisfy both" requirements, id.

Various state and industry groups challenged the Car Rule, along with the Endangerment Finding and related regulations. This court upheld the rules against all challenges, see Coalition for Responsible Regulation, 684 F.3d 102, 401 U.S.App.D.C. 306, and the Supreme

Page 1295

Court denied certiorari in the portion of the case challenging the Car Rule, see Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2438, 189 L.Ed.2d 372 (2014).

Meanwhile, in 2011, EPA and NHTSA issued another joint Final Rule, this one regulating the greenhouse gas emissions and fuel economy of heavy-duty vehicles, i.e., trucks. See Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles, Final Rule, 76 Fed.Reg. 57,106 (Sept. 15, 2011) (" Truck Rule" ). As with the Car Rule, the agencies' standards differ slightly, see id. at 57,106 (explaining that " [c]ertain rules are exclusive to the EPA program" and that the EPA program phases in earlier), but again, " [c]ompliance by a truck manufacturer with the NHTSA fuel economy rule assures compliance with the EPA rule, and vice versa," id. at 57,125.

This case combines multiple challenges to the Truck Rule, as well as a collateral attack on the Car Rule. Two overlapping groups, which we shall refer to as the " California Petitioners," comprising businesses, associations, and individuals located in that state, bring related challenges: one to EPA's portion of the Car Rule and the other to its portion of the Truck Rule. These petitioners claim that, as purchasers of new vehicles, they are harmed by the increased up-front costs attributable to the greenhouse gas emission standards.

Another petitioner, Plant Oil Powered Diesel (" POP Diesel" ), is a business that promotes the use of vegetable oil in place of traditional diesel fuel. It makes after-market modifications to diesel engines enabling them to run on vegetable oil, and hopes to bring a proprietary engine to market. POP Diesel also imports and sells jatropha oil, a vegetable fuel squeezed from the fruit of a poisonous tree. Claiming that the Truck Rule makes its products economically infeasible, POP Diesel sought reconsideration of both the EPA and NHTSA components of that rule. EPA denied POP Diesel's petition for reconsideration, while NHTSA treated the filing as a petition for rulemaking, which it rejected. POP Diesel now appeals from the agencies' denials of its petition.

In order to obtain judicial review of these claims,...

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