Grocery Mfrs. Ass'n v. Envtl. Prot. Agency

• Decision Date: 17 August 2012
• Docket Number: Nos. 10–1380,11–1072,11–1086.,10–1414,11–1002,11–1046,s. 10–1380
• Citation: 693 F.3d 169
• Parties: GROCERY MANUFACTURERS ASSOCIATION, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Growth Energy, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

693 F.3d 169

GROCERY MANUFACTURERS ASSOCIATION, et al., Petitioners

v. ENVIRONMENTAL PROTECTION AGENCY, RespondentGrowth Energy, Intervenor.

Nos. 10–1380, 10–1414, 11–1002, 11–1046, 11–1072, 11–1086.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 2012.

Decided Aug. 17, 2012.

On Petitions for Review of Final Actions of the Environmental Protection Agency.

Catherine E. Stetson argued the cause for petitioners Grocery Manufacturers Association, et al. Michael F. McBride argued the cause for petitioners Alliance of Automobile Manufacturers, et al. With them on the briefs were Mary Helen Wimberly, Richard A. Penna, Marisa Hecht, Chet M. Thompson, William L. Wehrum, and Lewis F. Powell, III.

Kenneth T. Cuccinelli, II, Attorney General, Office of the Attorney General for the State of Virginia, E. Duncan Getchell Jr., Solicitor General, Stephen R. McCullough, Senior Appellate Counsel, Charles E. James Jr., Chief Deputy Attorney General, and Wesley G. Russell Jr., Deputy Attorney General, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, E. Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma, and John J. Burns, Attorney General, Office of the Attorney General for the State of Alaska,were on the brief as amici curiae State of Alabama, et al.

Jessica O'Donnell, Attorney, Department of Justice, argued the cause and filed the brief for respondent.

Randolph D. Moss argued the cause for intervenor. With him on the brief were Kenneth R. Meade and Brian M. Boynton.

Before: SENTELLE, Chief Judge, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Concurring opinion filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

SENTELLE, Chief Judge:

Petitioners, trade associations whose members are part of the petroleum and food industries, filed petitions for review of two EPA decisions approving the introduction of E15—a blend of gasoline and 15 percent ethanol—for use in select motor vehicles and engines. Because we hold that no petitioner has standing to bring this action, we dismiss all petitions for lack of jurisdiction.

I. The Waiver Proceeding

In the Energy Policy Act of 2005, Congress incorporated into the Clean Air Act (CAA) the Renewable Fuel Standard, Pub. L. 109–58, § 1501(a) (2005) (RFS). As amended, the RFS requires qualifying refiners and importers of gasoline or diesel fuel to introduce into U.S. commerce a specified, annually increasing volume of renewable fuel. 42 U.S.C. § 7545( o )(2)(A)(i).

In order to comply with the requirements of the RFS, refiners and importers primarily blend corn-based ethanol into the fuel supply. The national gasoline supply currently consists largely of “E10,” a gasoline blended with 10 percent ethanol. Given the continual increase in required volume of renewable fuel, E10 alone will not meet the producers' obligations forever. E10 has substantially saturated the U.S. gasoline market already, yet the volume of renewable fuel required to be introduced increases annually, up to 36 billion gallons of renewable fuel in 2022. Id. § 7545( o )(2)(B)(i)(I). Moreover, an increasing percentage of the increasing RFS obligation must come from “advanced biofuels,” i.e., sources other than ethanol derived from corn. Id. § 7545( o )(2)(B)(i)(II) (requiring that advanced biofuel make up 21 billion of the 36 billion gallons of renewable fuel required in 2022). Fuel manufacturers must, therefore, introduce new types of renewable fuels in order to continue to meet their growing burden under the RFS.

Fuel manufacturers cannot introduce new renewable fuels into the market at will. The Clean Air Act prohibits manufacturers from introducing into commerce “any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive” used in the federal emissions certification of those vehicles. 42 U.S.C. § 7545(f)(1)(B). To bring most new fuels (including renewable fuels) to market, a manufacturer must apply for a waiver of this prohibition pursuant to CAA Section 211(f)(4), 42 U.S.C. § 7545(f)(4). The Administrator of EPA may grant such a waiver “if he determines that the applicant has established that such fuel or fuel additive or a specified concentration thereof, and [its] emission products ..., will not cause or contribute to a failure of any emission control device or system (over the useful life of the motor vehicle, motor vehicle engine, nonroad engine or nonroad vehicle in which such device or system is used) to achieve compliance by the vehicle or engine with the emission standards with respect to which [the vehicle or engine] has been certified pursuant to sections 7525 and 7547(a) of this title.” 42 U.S.C. § 7545(f)(4).

In March 2009, Growth Energy, a trade association representing the ethanol industry, applied for a Section 211(f)(4) waiver to introduce E15, an unleaded gasoline blend containing 15 percent ethanol. After notice and comment, EPA issued two separate waiver decisions. In its first waiver decision, Partial Grant and Partial Denial of Clean Air Act Waiver Application Submitted by Growth Energy To Increase the Allowable Ethanol Content of Gasoline to 15 Percent, 75 Fed. Reg. 68,094 (Nov. 4, 2010), EPA approved the introduction of E15 for use in light-duty motor vehicles from model-year 2007 and later. At the same time, it denied the waiver for model-year 2000 and older vehicles because it could not determine given the data available that using E15 in such vehicles would not contribute to failures of emissions controls. For the same reason, EPA denied the waiver for nonroad engines, vehicles, and equipment ( e.g., boats, all-terrain vehicles, and weedeaters), heavy-duty gasoline engines and vehicles, and motorcycles. Finally, EPA deferred its decision whether to approve E15 for use in model-year 2001–2006 light-duty motor vehicles and engines, stating that it needed further results from Department of Energy (DOE) tests that measured the effects of ethanol blends on the durability of engine catalysts (which “scrub” motor vehicle emissions by converting harmful exhaust gases into carbon dioxide, nitrogen, and water). After receiving those results, EPA issued a second decision. Partial Grant of Clean Air Act Waiver Application Submitted by Growth Energy To Increase the Allowable Ethanol Content of Gasoline to 15 Percent, 76 Fed. Reg. 4662 (Jan. 26, 2011). That second decision extended the waiver to permit the use of E15 in light-duty motor vehicles and engines from model-years 2001–2006.

In sum, EPA granted “partial” waivers approving the introduction of E15 for use in model-year 2001 and newer light-duty motor vehicles and engines. These waivers are conditional. E15 manufacturers are required to (1) introduce only E15 that meets certain fuel quality parameters and (2) submit for approval by EPA a plan for the implementation of “misfueling mitigation conditions” set forth in the EPA decision. The term “misfueling,” as used in the EPA decisions, refers to the use of E15 in pre–2001 vehicles and other non-approved vehicles, engines, and equipment. The misfueling mitigation conditions and strategies which EPA set forth as necessary for such a plan included pump-labeling requirements, participation in a pump-labeling and fuel-sample compliance survey, and proper documentation of ethanol content on transfer documents.

Three sets of industry groups (collectively, “Petitioners”) representing members who either (1) manufacture engines and related products (the “engine-products group” or “engine manufacturers”), (2) sell food (including livestock) that requires corn as an input (the “food group” or “food producers”), or (3) produce or handle petroleum and renewable fuels (the “petroleum group” or “petroleum suppliers”) petitioned this court for review of EPA's E15 waivers. We review herein the consolidated petitions. Growth Energy, the waiver applicant, intervened in support of EPA's defense of its waiver decisions.

II. Standing

Petitioners contend that (1) EPA lacks authority under CAA Section 211(f)(4) to grant “partial” waivers approving the use of E15; (2) Growth Energy, the waiver applicant, failed to meet a requiredevidentiary burden under Section 211(f)(4); (3) EPA failed to provide sufficient opportunity for comment on certain aspects of its waiver decision; and (4) the record does not support EPA's decision to grant the partial waivers. While the government does not contest petitioners' standing to petition for review of EPA's waiver decisions, intervenor Growth Energy has called our attention to the potential failure of petitioners to establish standing under Article III. Even in the absence of intervenor's objection, we would be required to review petitioners' standing. Standing under Article III is jurisdictional. If no petitioner has Article III standing, then this court has no jurisdiction to consider these petitions. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Regardless of whether the parties raised the issue, we have “an independent obligation to be sure of our jurisdiction.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002). Therefore, before we even consider the merits of the petitions, we must determine whether any petitioner has standing to bring them to court.

A.

As the Supreme Court has declared, “the law of Art. III standing is built on ... the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The application of the standing doctrine, along with other jurisdictional requirements, ensures that federal courts act only within their constitutionally prescribed role: resolving “Cases” and “Controversies,” U.S. Const. art. III, § 2, cl. 1, “those disputes which are appropriately resolved through...