Chamber of Commerce v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2011 Decided April 29, 2011

No. 09-1237

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA

AND NATIONAL AUTOMOBILE DEALERS ASSOCIATION,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

INTERVENORS

On Petition for Review of an Order

of the Environmental Protection Agency

Paul D. Clement argued the cause for petitioners. On the

briefs were Robin S. Conrad, Andrew D. Koblenz, Douglas I.

Greenhaus, Matthew G. Paulson, Alexandra M. Walsh, and

Adam J. White. Jeffrey A. Lamken and Amar D. Sarwal entered

appearances.

Damien M. Schiff was on the brief for amicus curiae Pacific

Legal Foundation in support of petitioners.

Norman L. Rave Jr., Attorney, U.S. Department of Justice,

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argued the cause for respondent. With him on the brief was

Michael Horowitz, Attorney, U.S. Environmental Protection

Agency. John C. Cruden, Assistant Attorney General, U.S.

Department of Justice, entered an appearance.

Edmund G. Brown, Jr., Attorney General, Office of the

Attorney General for the State of California, Kathleen A.

Kenealy, Senior Assistant Attorney General, Marc N. Melnick,

Deputy Attorney General; Andrew M. Cuomo, Attorney General,

Office of the Attorney General for the State of New York,

Michael J. Myers, Assistant Attorney General; Gary K. King,

Attorney General, Office of the Attorney General for the State

of New Mexico; Joseph R. Biden III, Attorney General, Office

of the Attorney General for the State of Delaware, Valerie M.

Satterfield, Deputy Attorney General; Richard Blumenthal,

Attorney General, Office of the Attorney General for the State

of Connecticut, Kimberly P. Massicotte and Matthew I. Levine,

Assistant Attorneys General; Lisa Madigan, Attorney General,

Office of the Attorney General for the State of Illinois, Gerald

T. Karr, Assistant Attorney General; Martha Coakley, Attorney

General, Office of the Attorney General for the Commonwealth

of Massachusetts, William L. Pardee and Carol Iancu, Assistant

Attorneys General; Thomas J. Miller, Attorney General, Office

of the Attorney General for the State of Iowa, David R.

Sheridan, Assistant Attorney General; Roberta James, Assistant

Attorney General, Office of the Attorney General for the State

of Maryland; Lori Swanson, Attorney General, Office of the

Attorney General for the State of Minnesota, Jocelyn F. Olson,

Assistant Attorney General; Janet T. Mills, Attorney General,

Office of the Attorney General for the State of Maine, Gerald D.

Reid, Assistant Attorney General; John Kroger, Attorney

General, Office of the Attorney General for the State of Oregon,

Paul Logan, Assistant Attorney General; William H. Sorrell,

Attorney General, Office of the Attorney General for the State

of Vermont, Thea J. Schwartz, Assistant Attorney General;

3

Kevin Auerbacher, Jon Martin, and Jung Kim, Deputy Attorneys

General, Office of the Attorney General for the State of New

Jersey; Patrick C. Lynch, Attorney General, Office of the

Attorney General for the State of Rhode Island, Gregory S.

Schultz, Special Assistant Attorney General; Robert M.

McKenna, Attorney General, Office of the Attorney General for

the State of Washington, Leslie R. Seffern, Assistant Attorney

General; Susan Shinkman, Chief Counsel, Commonwealth of

Pennsylvania Department of Environmental Protection, Robert

A. Reiley and Kristen M. Furlan, Assistant Counsel; Kurt R.

Wiese, Barbara B. Baird, David Doniger, Joanne Spalding,

Sean H. Donahue, Vickie Patton, and Pamela Campos were on

the intervenors’ brief in support of respondent. Frederick D.

Augenstern I, Assistant Attorney General, Office of the Attorney

General for the Commonwealth of Massachusetts, David G.

Bookbinder, Beverly M. Conerton, Assistant Attorney General,

Office of the Attorney General for the State of Minnesota, and

Stephen R. Farris, Assistant Attorney General, Office of the

Attorney General for the State of New Mexico, entered

appearances.

Deborah A. Sivas and Robb W. Kapla were on the brief for

amici curiae Former U.S. EPA Administrators William K.

Reilly and Russell E. Train in support of respondent.

John W. Busterud was on the joint brief for amici curiae

Pacific Gas and Electric Corporation and Sempra Energy. Mark

D. Patrizio entered an appearance.

Stephen F. Hinchman and Matthew F. Pawa were on the

brief for amici curiae Car Dealers Adam D. Lee and Charles E.

Frank in support of respondent.

Helen Kang was on the brief for amici curiae Climate

Scientists in support of respondent.

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Before: HENDERSON, GARLAND, and BROWN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The Chamber of Commerce and

the National Automobile Dealers Association petition for review

of a decision by the Environmental Protection Agency (EPA)

granting California a waiver from federal preemption under the

Clean Air Act. The waiver allows California to implement its

own regulations requiring automobile manufacturers to reduce

fleet-average greenhouse gas emissions from new motor

vehicles sold in the state. Because we lack jurisdiction to decide

this case at this time in a suit brought by these petitioners, we

dismiss the petition for review without reaching its merits.

I

The Clean Air Act (CAA) generally bars states from

adopting their own emissions standards for new motor vehicles,

leaving such regulations to federal control. See 42 U.S.C.

§ 7543(a) (“No State . . . shall adopt or attempt to enforce any

standard relating to the control of emissions from new motor

vehicles or new motor vehicle engines”). Section 7543(b)(1)

provides the following exception to federal preemption:

(b)(1) The Administrator [of EPA] shall, after notice

and opportunity for public hearing, waive application

of this section to any State which has adopted

standards . . . for the control of emissions from new

motor vehicles or new motor vehicle engines prior to

March 30, 1966, if the State determines that the State

standards will be, in the aggregate, at least as

protective of public health and welfare as applicable

5

Federal standards. No such waiver shall be granted if

the Administrator finds that –

(A) the determination of the State is arbitrary and

capricious,

(B) such State does not need such State standards

to meet compelling and extraordinary conditions,

or

(C) such State standards and accompanying

enforcement procedures are not consistent with

section 7521(a) of this title.

42 U.S.C. § 7543(b)(1). As California is the only state that had

adopted emissions standards prior to March 30, 1966, it is the

only state eligible for a waiver of federal preemption under this

provision. See Ford Motor Co. v. EPA, 606 F.2d 1293, 1296

(D.C. Cir. 1979). In 1977, however, Congress amended the

CAA to permit other states to adopt and enforce standards

“identical to the California standards for which a waiver has

been granted,” without obtaining a separate waiver, provided

that both California and the other state have given manufacturers

a two-year lead time. 42 U.S.C. § 7507. States that adopt

California’s motor vehicle emissions program are referred to as

“Section 177 states,” after the section of the CAA that

authorizes them to do so. See Ford Motor Co., 606 F.2d at

1298, 1301 n.54.

In September 2004, the California Air Resources Board

(CARB) adopted regulations setting fleet-average greenhouse

gas1 emissions standards for new motor vehicles beginning in

Model Year (MY) 2009. See CAL. CODE REG. tit. 13 § 1961.1.

Under those regulations, manufacturers receive credits for

1

Greenhouse gases include carbon dioxide, methane, nitrous

oxides, and hydroflourocarbons. EPA Br. 5.

6

meeting the standards before MY 2009, for exceeding the

standards in subsequent model years, and for selling alternative

fuel vehicles. These credits may be banked for later use or sold

to another manufacturer. Id. § 1961.1(b). If a manufacturer

fails to comply in a particular model year, it begins to accrue

debits. A manufacturer may incur a debit in any model year

without penalty so long as it makes up the debit within five

years, either by generating credits or purchasing credits from

another manufacturer. Id. The standards become stricter as the

model years progress. Id. § 1961.1(a).

On December 21, 2005, CARB asked EPA to waive federal

preemption of California’s greenhouse gas emissions standards

pursuant to § 7543(b)(1). EPA denied the request. Its decision,

published in March 2008, stated that “California does not need

its motor vehicle [greenhouse gas] standards to meet compelling

and extraordinary conditions,” as § 7543(b)(1)(B) requires.

Decision Denying a Waiver of Clean Air Act Preemption, 73

Fed. Reg. 12,156, 12,159 (Mar. 6, 2008). The agency

recognized that it had previously interpreted § 7543(b)(1)(B) to

ask only whether California continued to need its own motor

vehicle program as a whole to address compelling and

extraordinary conditions. Id. at 12,159-61. But it concluded

that § 7543(b)(1)(B) was subject to multiple interpretations, and

when applied to emissions standards designed to address global

as opposed to local or regional air pollution problems, it was

best understood to require that EPA assess California’s need for

the newly proposed standards by themselves. Id. California

could not satisfy this requirement, EPA reasoned, because

California-specific conditions are not “the fundamental causal

factors for the air pollution problem of elevated concentrations

of greenhouse gases,” and, alternatively, because the effects of

global climate change in California “are not sufficiently

different from conditions in the nation as a whole to justify

separate state standards.” Id. at 12,162, 12,168. Thereafter,

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California, several other states, and several environmental

groups petitioned this court for review.2

On January 21, 2009, CARB asked EPA to reconsider its

previous denial. EPA agreed to reconsider and, on July 8, 2009,

after a public hearing and comment period, issued a decision

granting the waiver. Decision Granting a Waiver of Clean Air

Act Preemption, 74 Fed. Reg. 32,744, 32,783 (July 8, 2009).

EPA rejected its 2008 interpretation of § 7543(b)(1)(B),

returning to its earlier view and finding that California’s request

satisfied the provision because California still needed its own

emissions program “as a whole.” Id. at 32,762-63. In the

alternative, EPA concluded that a waiver was warranted even if

it were to examine California’s greenhouse gas standards

separately under the tests applied in its 2008 decision. The

agency found that those standards were intended at least in part

to address a local or regional problem because of the “logical

link between the local air pollution problem of ozone and

. . . [greenhouse gases].” Id. at 32,763. It also determined that

waiver opponents had not met their burden of demonstrating that

“the impacts of global climate change in California are either not

significant enough or are not different enough from the rest of

the country to be considered compelling and extraordinary

conditions.” Id. at 32,765. Since EPA’s waiver decision, at

least fourteen states -- including the State of Maryland -- have

adopted California’s greenhouse gas emissions standards

pursuant to Section 177.3 On September 8, 2009, the Chamber

2

Those petitions were held in abeyance and subsequently

dismissed on the parties’ joint motion after EPA reversed its denial

and granted the waiver, as discussed below. See California v. EPA,

No. 08-1178 (D.C. Cir. filed May 5, 2008).

3

See ARIZ. ADMIN. CODE § R18-2-1805 (2011); CONN. AGENCIES

REGS. § 22a-174-36b (2011); D.C. CODE § 50-731 (2011); FLA.

8

of Commerce and the National Automobile Dealers Association

(NADA) petitioned for judicial review of EPA’s waiver

decision.

On April 1, 2010, EPA and the National Highway

Transportation Safety Administration (NHTSA) jointly issued

a national program of greenhouse gas emissions and fuel

economy standards for MYs 2012 to 2016. Light-Duty Vehicle

Greenhouse Gas Emission Standards and Corporate Average

Fuel Economy Standards (Final Rule), 75 Fed. Reg. 25,324

(May 7, 2010). The product of an agreement between the

federal government, California, and the major automobile

manufacturers, the new rules make it possible for automobile

manufacturers to sell a “single light-duty national fleet” that

satisfies the standards of the EPA, NHTSA, California, and the

Section 177 states. Id. at 25,324-28. Pursuant to that

agreement, California amended its regulations to deem

compliance with the national standards compliance with its own

for MYs 2012-16. See CAL. CODE REGS. tit. 13

§ 1961.1(a)(1)(A)(ii). The California-specific standards remain

in place until MY 2012, although California adopted “pooling

rules” that allow manufacturers to achieve compliance for MYs

2009-11 based on the “pooled” average emissions for the fleets

of vehicles sold in California and the Section 177 states. See id.

§ 1961.1(a)(1)(A)(i). Major automobile manufacturers and their

trade associations, in turn, made commitments not to contest the

ADMIN. CODE ANN. r. 62-285.400 (2011); 06-096-127 ME. CODE R.

§ 4 (2011); MD. CODE REGS. 26.11.34.02 (2011); 310 MASS. CODE

REGS. 7.40(2)(a)(7) (2011); N.J. ADMIN. CODE § 7:27-29.13 (2011);

N.M. CODE R. § 20.2.88.102 (2011); N.Y. COMP. CODES R. & REGS.

tit. 6, § 218-8.3 (2011); OR. ADMIN. R. 340-257-0050 (2011); 25 PA.

CODE. § 126.411 (2011); R.I. ADMIN. CODE 25-4-37:37.2 (2011); 16-

3-100 VT. ADMIN. CODE. § 5-1106 (2011); WASH. ADMIN. CODE.

§ 173-423-070 (2011).

9

national standards for MYs 2012-16, not to contest the grant of

a waiver of CAA preemption to California for its greenhouse gas

emissions regulations, and to stay and then dismiss all then-

pending litigation challenging those regulations. See 75 Fed.

Reg. at 25,328.

Although the automobile manufacturers agreed not to

contest EPA’s grant of a waiver to California, the Chamber of

Commerce and NADA did not join in that agreement. On behalf

of their automobile dealer members, the Chamber and NADA

bring this challenge to EPA’s decision to grant California a

preemption waiver under § 7543(b)(1). They argue that

§ 7543(b)(1)(B) unambiguously requires that EPA assess

California’s need for the particular standards it presents for a

waiver, not for its state-specific emissions program as a whole.

Even if there were any ambiguity, the petitioners argue, it was

unreasonable for EPA to waive preemption for standards related

to a global environmental problem based on California’s

continuing need to address state-specific conditions. Finally, the

petitioners reject EPA’s alternative conclusion that the

California greenhouse gas standards are proper even under its

2008 test. In their view, California’s standards will have no

identifiable effect on increased global temperatures, and any

effects of climate change in California are not sufficiently

different from those experienced elsewhere in the country to

justify California-specific regulations.

Before we may reach the merits of these arguments, we

must assure ourselves that Article III of the Constitution grants

us jurisdiction to decide this case. See Steele Co. v. Citizens for

a Better Env’t., 523 U.S. 83 (1998). Because we conclude that

we lack jurisdiction, we dismiss the petition for review.

10

II

Because Article III limits federal judicial jurisdiction to

cases and controversies, see U.S. CONST. art. III, § 2, federal

courts are without authority “to render advisory opinions [or] ‘to

decide questions that cannot affect the rights of litigants in the

case before them,’” Preiser v. Newkirk, 422 U.S. 395, 401(1975)

(citation omitted). The doctrines of standing and mootness

reflect and enforce those limitations. See Davis v. FEC, 554

U.S. 724, 732-33 (2008); Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). “[S]tanding

is assessed as of the time a suit commences,” Del Monte Fresh

Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir.

2009), and it ensures that a litigant “allege[s] such a personal

stake in the outcome of the controversy as to warrant his

invocation of federal-court jurisdiction,” Summers v. Earth

Island Inst., 129 S. Ct. 1142, 1149 (2009) (internal quotation

marks omitted); accord Davis, 554 U.S. at 732. But standing is

not enough. “To qualify as a case fit for federal-court

adjudication, an actual controversy must be extant at all stages

of review, not merely at the time the complaint is filed.” Davis,

554 U.S. at 732-33 (internal quotation marks omitted). Thus,

“[e]ven where litigation poses a live controversy when filed,”

we must dismiss a case as moot “if events have so transpired

that the decision will neither presently affect the parties’ rights

nor have a more-than-speculative chance of affecting them in

the future.” Clarke v. United States, 915 F.2d 699, 701 (D.C.

Cir. 1990) (internal quotation marks omitted); see Am. Bar Ass’n

v. FTC, No. 105057, 2011 WL 744659, at *3 (D.C. Cir. Mar. 4,

2011).

Neither the Chamber nor NADA claims standing in its own

right; rather, both claim standing to sue on behalf of their

members, particularly their members who are automobile

dealers. An association has standing to sue on behalf of its

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members if: “1) at least one of its members would have

standing to sue in his own right, (2) the interests the association

seeks to protect are germane to its purpose, and (3) neither the

claim asserted nor the relief requested requires that an individual

member of the association participate in the lawsuit.” Sierra

Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002); see Laidlaw,

528 U.S. at 181. Both the Chamber and NADA satisfy the latter

two conditions; the only question is whether their automobile

dealer members would have standing to sue in their own right.

See also Munsell v. Dep’t of Agric., 509 F.3d 572, 584 (D.C.

Cir. 2007) (holding that when an association sues on behalf of

its members, its claims become moot if its members’ claims

become moot).

When a petitioner claims associational standing, it is not

enough to aver that unidentified members have been injured.

Summers, 129 S. Ct. at 115-521. Rather, the petitioner must

specifically “identify members who have suffered the requisite

harm.” Id. at 1152; see Am. Chemistry Council v. Dep’t of

Transp., 468 F.3d 810, 815, 820 (D.C. Cir. 2006) (holding that

“an organization bringing a claim based on associational

standing must show that at least one specifically-identified

member has suffered an injury-in-fact. . . . At the very least, the

identity of the party suffering an injury in fact must be firmly

established.”). Because the Chamber has not identified a single

member who was or would be injured by EPA’s waiver

decision, it lacks standing to raise this challenge. Id. That flaw

is inconsequential, however, because the Chamber’s co-

petitioner, NADA, has identified allegedly injured members.

See Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C.

Cir. 1998) (finding it unnecessary to address the standing of a

party whose presence or absence is immaterial to a suit’s

outcome, where another petitioner clearly has standing). Along

with its briefs, NADA has submitted declarations from two of its

12

automobile dealer members alleging injury as a result of the

waiver decision.

We must therefore consider whether the automobile dealers

that NADA has identified can satisfy the requirements of

standing (as well as whether their claims have become moot).

The “irreducible constitutional minimum” requirements of

standing are:

(1) that the plaintiff have suffered an “injury in fact” --

an invasion of a judicially cognizable interest which is

(a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) that

there be a causal connection between the injury and the

conduct complained of -- the injury must be fairly

traceable to the challenged action of the defendant, and

not the result of the independent action of some third

party not before the court; and (3) that it be likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.

Bennett v. Spear, 520 U.S. 154, 167 (1997). A petitioner bears

the burden of establishing each of these elements. See Summers,

129 S. Ct. at 1149; Bennett, 520 U.S. at 167-68; Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). That burden

“is to show a ‘substantial probability’ that it has been [or will

be] injured, that the defendant caused its injury, and that the

court could redress that injury.” Sierra Club, 292 F.3d at 899

(citation omitted).

With respect to the first element of standing, the petitioners

do not assert that their dealer members had suffered an “actual”

injury at the time they filed their petition for review, Bennett,

520 U.S. at 167. Rather, their concern is about future injury. As

we have noted before, “any petitioner alleging only future

13

injuries confronts a significantly more rigorous burden to

establish standing.” United Transp. Union v. ICC, 891 F.2d

908, 913 (D.C. Cir. 1989). To qualify for standing, the

petitioners must demonstrate that the alleged future injury is

“imminent.” Bennett, 520 U.S. at 167; see Whitmore v.

Arkansas, 495 U.S. 149, 158 (1990) (“Allegations of possible

future injury do not satisfy the requirements of Art. III[;] [a]

threatened injury must be certainly impending to constitute

injury in fact.” (internal quotation marks omitted)). And to

“shift[] injury from ‘conjectural’ to ‘imminent,’” the petitioners

must show that there is a “substantial . . . . probability” of injury.

Sherley v. Sebelius, 610 F.3d 69, 74 (D.C. Cir. 2010); see Sierra

Club, 292 F.3d at 898.

With respect to the second and third elements of standing,

the petitioners here face an additional problem: California’s

emissions standards do not regulate automobile dealers, but

rather automobile manufacturers -- third parties that have

declined to participate in this challenge. See CAL. CODE REGS.

tit. 13 § 1961.1(a)(1) (requiring manufacturers to demonstrate

compliance with fleet-average requirements). “[W]hen the

plaintiff is not himself the object of the government action or

inaction he challenges, standing is not precluded, but it is

ordinarily ‘substantially more difficult’ to establish.” Lujan,

504 U.S. at 562 (quoting, inter alia, Warth v. Seldin, 422 U.S.

490, 505 (1975)). Because any injury to the petitioners’

members hinges on actions taken by manufacturers, the

petitioners carry “the burden of ‘adduc[ing] facts showing that

those [third-party] choices have been or will be made in such

manner as to produce causation and permit redressability of

injury,’” Ctr. for Biological Diversity v. U.S. Dep’t of Interior,

563 F.3d 466, 477 (D.C. Cir. 2009) (quoting Lujan, 504 U.S. at

562). Again, the petitioners must show that, “absent the

[government’s allegedly unlawful actions], there is a substantial

probability that they would [not be injured] and that, if the court

14

affords the relief requested, the [injury] will be removed.”

Warth, 422 U.S. at 504; see Fla. Audobon Soc’y v. Bentsen, 94

F.3d 658, 666 (D.C. Cir. 1996); Kurtz v. Baker, 829 F.2d 1133,

1143-44 (D.C. Cir. 1987).

In the following Part, we apply these principles to the

petitioners’ claims.

III

The petitioners allege two kinds of injury in fact to their

dealer members. First, they contend that in order to comply

with the California standards, automobile manufacturers will

have to alter the mix of vehicles (“mix-shift”) they would

otherwise deliver for sale in California and the other states that

have adopted California’s standards (the Section 177 states). As

a result, dealers in those states will be unable to obtain certain

vehicles that their customers want to buy, placing them at a

competitive disadvantage with respect to out-of-state dealers.

Second, the petitioners argue that enforcement of the new

standards will result in an increase in manufacturers’ costs, and

hence in the price manufacturers charge for the automobiles they

deliver to dealers in California and the Section 177 states. For

this reason, the petitioners contend, either their dealer members

will have to settle for lower profit margins, or they will have to

charge higher prices that will cause some prospective customers

to forgo purchases.

In support of the petitioners’ contention that their dealer

members will suffer imminent injury from mix-shifting and

price increases caused by EPA’s waiver decision, NADA offers

the declarations of two of its members: the owner of a Ford

dealership near the Sierra Nevada Mountains in California, and

the owner of a Lincoln Mercury dealership in Maryland.

Neither declaration, however, suffices to demonstrate the

15

“substantial probability” of injury required to establish the

petitioners’ standing.

In his declaration, Steve Pleau, the owner of the California

dealership, avers that California’s fleet-average standards “could

limit Ford’s ability to deliver certain models to California

dealers,” “may force Ford to ‘compensate’ for delivering high-

emitting vehicles by delivering more light-weight, low-emission

models than the market demands,” and as a consequence “may

limit [his] ability to obtain and keep in stock a sufficient

quantity of the vehicles that [his] customers want or need to buy,

particularly those with the most powerful engines available for

a given model.” Petitioners’ Stand. Add. 10 (emphases added).

Maryland Lincoln Mercury dealership owner Vincent Trasatti,

Jr. is similarly concerned, and similarly equivocal. He worries

that Maryland’s adoption of the California fleet-average

standards “could limit [his] ability to maintain the stock that

[his] customers want and expect [him] to have” and “may limit

the ability of Ford Motor Company [which owns Lincoln

Mercury] to supply [his] dealership with the vehicle stock

necessary to meet consumer demand.” Id. at 13 (emphases

added). “If, as a result of Maryland’s greenhouse gas standards,

Ford Motor Company alters the mix of vehicles that it delivers

to Maryland dealers,” Trasatti “anticipate[s] that it will be more

difficult to stock the mix of vehicles that [his] customers

expect.” Id. (emphasis added). As the petitioners’ brief

summarizes, “[t]he upshot of these anticipated effects is that

NADA’s members may be forced to pay more for certain

vehicles, and may be unable to purchase other vehicles at all.”

Petitioners’ Br. 23 (emphases added).

These are just the kind of declarations that we have

previously rejected as insufficient to establish standing. In

Center for Biological Diversity, for example, we held that

because the petitioners could “only aver that any significant

16

adverse effects . . . ‘may’ occur at some point in the future,”

they failed to show “the actual, imminent, or ‘certainly

impending’ injury required to establish standing.” 563 F.3d at

478; see also La. Envtl. Action Network v. Browner, 87 F.3d

1379, 1384 (D.C. Cir. 1996) (holding that the petitioner’s claim

that “dire consequences . . . would befall it if” certain events

were to transpire was insufficient to “state an injury sufficiently

imminent and concrete for constitutional standing”).

Accordingly, if we are to find that the petitioners have standing,

it must be based on other evidence before the court. See Sierra

Club, 292 F.3d at 899 (holding that a petitioner seeking review

of administrative action in the court of appeals “must either

identify in th[e] record evidence sufficient to support its

standing to seek review, or if there is none . . . , submit

additional evidence to the court”). As an analysis of that

evidence reveals, however, the infirmities of the dealers’

declarations are not a matter of drafting. Rather, they accurately

reflect the weakness of the record.

Because MYs 2009-11 are now largely behind us, and

because the federal government has promulgated national

standards for MYs 2012-16, we divide our analysis of the

injuries asserted by the petitioners into two time periods. In

Subpart A, we examine the likelihood (as measured at the date

of the petition) that the dealers identified by NADA would

suffer an injury in MYs 2009-11 sufficient to confer standing, as

well as whether their claims of injury have been mooted by the

passage of time. In Subpart B, we conduct the injury inquiry

with regard to MYs 2012-16, and also consider whether the

federal government’s promulgation of national standards for

those years -- and California’s adoption of those standards -- has

mooted the case for that period.

17

A

1. With respect to the alleged harm of mix-shifting, the

record evidence indicates that, at the time this petition was filed,

it appeared that Ford would not have to mix-shift to meet the

California standards in MYs 2009 and 2010, and that it was

unlikely to have to do so in MY 2011. A 2009 CARB study

found that, in MY 2009, Ford (as well as GM and Chrysler)

would be in fleet-wide compliance by wide margins with their

2009 models. See 74 Fed. Reg. at 32,772. For MY 2010, the

study again projected fleet-wide compliance for Ford, even in

the “highly unlikely” event that it “makes no changes to [its]

2009 model year vehicles.” Letter from James N. Goldstene,

CARB Exec. Officer to Adm’r Lisa P. Jackson, U.S. EPA, at 25-

26 (April 6, 2009) (hereinafter CARB Comments on

Reconsideration) (J.A. 3454-55).4 CARB also conducted a

“worst-case analysis” that found only a small net greenhouse gas

debit for Ford and two other manufacturers over the 2009-11

model year period, assuming no change in sales mix or

technology after MY 2009. Id. at 24 (J.A. 3453). And it

concluded that, “because this analysis was based on worst case

testing, it is likely that testing with additional vehicles in each

test group would show even the debiting companies in

compliance” throughout the 2009-11 period. Id.; see 74 Fed.

Reg. at 32,772.

The two other studies in the record produced similar results.

A National Resources Defense Council analysis cited by EPA

projected industry-wide compliance in MYs 2009 and 2010 by

wide margins, and industry-wide compliance in MY 2011

through the use of banked credits. See 74 Fed. Reg. at 32,772.

4

The study also projected fleet-wide compliance for GM and

Chrysler in MY 2010, with the use of accumulated credits. CARB

Comments on Reconsideration 26 (J.A. 3455).

18

A study by Energy and Environmental Analysis, Inc. (EEA),

which took into account manufacturers’ existing product plans,

found that Ford “will comply” in MY 2009 and that Ford “can

likely comply” in MY 2010 “by either using banked credits from

2009 or with small adjustments to the power train mix and sales

mix sold in California, if necessary.” ENERGY AND ENVTL.

ANALYSIS, INC., AUTO-MANUFACTURERS ABILITY TO COMPLY

WITH CALIFORNIA GHG STANDARDS THROUGH 2012 (2009)

(hereinafter EEA Report) (J.A. 3330). EEA concluded that Ford

and the other manufacturers “could require additional efforts

such as air conditioner improvements to comply” with the MY

2011 standards. Id. Air-conditioner improvements, however,

are not the kind of mix-shifting injury that the petitioners assert.

Not only have the petitioners failed to establish that at the

time this suit was initiated there was a substantial probability

that Ford would have to mix-shift in California (or Maryland)

during MYs 2009-11, but they have also failed to establish that

even if such mix-shifting were to be required, it would have an

effect on the ability of the identified Ford dealers to meet their

customers’ demands. See Am. Chemistry Council, 468 F.3d at

820 (holding that “an organization bringing a claim based on

associational standing must show that at least one specifically-

identified member has suffered injury-in-fact”). For example,

there is no evidence -- nor even any assertion -- that if Ford had

to mix-shift to comply with California’s fleet-average

requirements, it would be unable to do so by increasing the

proportion of smaller and more fuel-efficient vehicles provided

to dealers in urban areas like San Francisco while maintaining

its supply of trucks and SUVs to dealers near the Sierra Nevadas

like Mr. Pleau. See Press Release, Ford Motor Co., New

Products Drive Ford’s October Sales, Share Gains (Nov. 3,

2009) (EPA Br. Attachment 2). We therefore cannot conclude

that the injury the petitioners predicted was substantially

probable.

19

2. In addition to mix-shifting, the petitioners contend that

enforcement of the new California standards will result in an

increase in the price of automobiles, forcing dealers to settle for

a lower profit margin or to charge higher prices -- which, in turn,

will cause some prospective customers to forgo in-state

purchases. Neither of the two dealer declarations, however,

addresses the price-increase issue at all. Instead, the petitioners

cite a 2005 CARB estimate that new-vehicle costs would rise by

an average of approximately $1,000 per vehicle under the

California regulations. CARB, Final Statement of Reasons, at

11 Table II-2 (Aug. 4, 2005) (J.A. 860). But CARB predicted

a gradual escalation in price, with the increase not reaching

$1,000 until 2016. For MYs 2009 through 2011, CARB’s cost

projections were substantially lower. Id.5

More important, by the time EPA actually granted

California’s waiver in July 2009, market conditions had changed

substantially from those upon which CARB’s 2005 estimate was

based. As we have just discussed, studies CARB conducted in

early 2009 -- based upon data from that model year -- found it

unlikely that Ford would have to change its sales mix or

technology to comply with the California standards through MY

2011. CARB Comments on Reconsideration 23-26 (J.A. 3452-

55). This was because manufacturers were already employing

enhanced greenhouse gas-reducing technologies necessary for

compliance. Id. at 19 (J.A. 3448). Indeed, Ford’s December

2008 business plan -- issued seven months before EPA granted

the waiver -- described the automaker’s independent intention

to invest $14 billion to improve its fleet fuel economy “from the

5

For example, for passenger cars, small trucks, and small SUVs,

CARB estimated average cost increases of $17 in 2009, $58 in 2010,

and $230 in 2011. The projected increase for large trucks and SUVs

in 2011 was $176. See CARB, Final Statement of Reasons, at 11

Table II-2 (J.A. 860).

20

2005 model year baseline every year,” leading to 14 percent

improvement by 2009 and 26 percent improvement by 2012.

Ford Motor Co. Business Plan, Submitted to the House

Financial Services Committee, at 14 (Dec. 2, 2008) (cited in

Decision Granting a Waiver, 74 Fed. Reg. at 32,773 n.181).

Hence, the petitioners have failed to demonstrate a substantial

probability that the waiver -- as distinct from Ford’s own

business plans -- would cause it injury in the form of price

increases during MYs 2009-11.

3. Finally, we note that by the date of oral argument, MYs

2009 and 2010 were already over, and MY 2011 (which began

in the last quarter of 2010) was well underway. The petitioners

have submitted no evidence that their members actually suffered

injury during any part of that period. Even if they had, vacating

California’s waiver could not possibly affect the mix or price of

automobiles delivered during the period that has passed. Indeed,

the petitioners acknowledged at oral argument that vacating the

waiver likely would have no effect during the balance of MY

2011 either. Oral Arg. Recording 4:20-:55. Hence, even if the

petitioners had been able to establish injury in MYs 2009-11

sufficient to confer standing, any injury that did occur during

that period is now moot. Our jurisdiction to review this

challenge therefore hinges entirely upon the impact that the

waiver decision will have on the petitioners’ members during

MYs 2012-16, the remainder of the time during which the

California waiver applies.

B

1. Turning to MYs 2012-16, we first consider whether the

petitioners have shown that NADA’s identified members will

suffer the kind of injury requisite for standing during those

years. Although the argument that the dealers will be harmed by

higher vehicle prices or mix-shifting during that period is

21

stronger than for MYs 2009-11, their standing is still

problematic.

As noted above, CARB’s 2005 estimate projected

considerably greater price increases for MYs 2012-16 than for

the earlier period.6 And with respect to mix-shifting, there is

certainly evidence -- although not specific to Ford -- that

manufacturers will have more difficulty complying with

California’s standards in MYs 2012-16 without altering the mix

of vehicles they sell in California and the Section 177 states.7

But even if the petitioners can establish the imminence of

their alleged mix-shifting and price-increase injuries, they still

6

The same study, however, projected that by the time the

California standards are fully phased in, any increase in average

vehicle costs will be more than offset by fuel-cost savings over the life

of the vehicle, resulting in a net decrease in the effective price of

automobiles -- even on the assumption that gasoline prices are an

unrealistically low $1.74 per gallon. CARB, Final Statement of

Reasons, at 11 (J.A. 860).

7

The EEA Report, on which the petitioners rely, does not

conclude that manufacturers are likely to mix-shift, only that

compliance with the MY 2012 requirements “may require credit

trading and banked past and future credits over and above credits from

air conditioner improvements and introduction of alternative fuel

vehicles.” EEA Report (J.A. 3331). Similarly, although Chrysler did

state that “it may be necessary to restrict sales of certain vehicle

models” if EPA granted the waiver, it characterized that possibility as

a “last resort” and said it would “try its best to comply using available

technology.” CARB Comments on Reconsideration 27 (J.A. 3456);

see also 74 Fed. Reg. at 32,773. The comments of industry groups

were less equivocal (although not manufacturer-specific), warning that

“the only means by which most large-volume manufacturers will be

able to meet the CARB standards [in 2012-16] is by ‘mix-shifting’

their product lines.” 74 Fed. Reg. at 32,774.

22

face difficulty satisfying the remaining prongs of standing

analysis: causation and redressability. In public statements

cited in the appellate record, Ford has said that it sees rising

consumer demand for fuel-efficient vehicles as key to its long-

term growth, and that it is developing its product line

accordingly.8 These and other statements suggest that Ford’s

own market analysis may independently lead it to implement

technology that will continue to meet the California standards,

even in the absence of regulatory compulsion. See

EPA/NHTSA Joint Public Hearing Transcript, at 13-14 (Oct. 21,

2009) (Amici Car Dealers Br. Attachment 7) (testimony by Ford

Vice President that Ford has a “long-term sustainability plan

. . . to improv[e] the fuel economy and reduc[e] the greenhouse

gas emissions of our fleet,” which “includes converting three

truck and SUV plants to build small cars, re-tooling our

powertrain facilities to manufacture EcoBoost engines and

. . . increasing our hybrid offerings,” because “it is the right

thing to do for our customers”); 74 Fed. Reg. at 32,773 (citing

testimony that Ford “plans to improve the average fuel economy

by . . . 36 percent by 2015”). Petitioners have offered no

evidence to the contrary, and no evidence that, if the waiver

were vacated, Ford would proceed on a different course more

favorable to the petitioners. See Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26, 41-42 (1976) (holding that a plaintiff lacks

standing where its claimed injury “results from the independent

action of some third party not before the court”); see also United

Transp. Union, 891 F.2d at 915 (holding that, “since any

hypothetical future injury could also occur even in the absence

8

See, e.g., Jamie LaReau, Ford goes green, small, high-tech,

Automotive News, Aug. 2, 2010 (Amici Car Dealers Br. Attachment

4); Press Release, Ford Motor Co., New Products Drive Ford’s

October Sales, Share Gains (Nov. 3, 2009) (EPA Br. Attachment 2).

23

of the challenged [agency action], a favorable decision from this

court would not be ‘likely’ to redress it”).9

2. In any event, we need not definitively decide whether the

petitioners have carried their burden of establishing standing

with respect to injury in MYs 2012-16 because the petition is

plainly moot for those years. As recounted in Part I, after the

petition for review was filed, EPA and NHTSA promulgated

national greenhouse gas standards for MYs 2012-16, see 75 Fed.

Reg. 25,324, and California amended its regulations to deem

compliance with those national standards as compliance with its

own, see CAL. CODE REGS. tit. 13 § 1961.1(a)(1)(A)(ii).

Beginning in MY 2012, automobile manufacturers will have to

9

A comparison of the relatively weak record in this case to the

abundant evidence we found sufficient to establish standing in

Competitive Enterprise Institute v. NHTSA, 901 F.2d 107 (D.C. Cir.

1990), is instructive. In that case, an association challenged the

agency’s decision to require higher fuel economy standards than the

association thought appropriate, contending that those standards

hampered its members’ ability to purchase larger passenger cars. In

contrast to the disputed future injury posited by the Ford dealers in this

case, the affidavits offered in Competitive Enterprise Institute averred

that the members had already suffered actual injury: they had “looked

for but [had] been unable to find new cars of large size, such as station

wagons, in a price range they could afford.” Id. at 112-13. Nor did

the petitioners suffer from the causation and redressability problems

that we discuss in the text above. “The evidence supporting th[e]

causal link” between the standards and the decreased production of

large automobiles was “contained in the agency’s own factfinding.”

Id. at 114. There was “overwhelming evidence” in the record “that the

auto manufacturers’ . . . product mix decisions [were] not made

substantially independent of the government’s imposition of fuel

economy standards,” id. at 116, and that “manufacturers [were] likely

to respond to lower . . . standards by continuing or expanding

production of larger, heavier vehicles,” id. at 117.

24

comply with the national standards whether we vacate the

waiver decision or not. Hence, the national standards, and not

EPA’s waiver decision, will be responsible for any injury

NADA members may suffer from higher prices or mix-shifting

in MYs 2012-16. Moreover, the specific injury that the

petitioners attribute to mix-shifting -- the risk that California

dealers will lose sales to dealers in neighboring states that have

not adopted California’s regulations -- will disappear entirely.

Manufacturers selling to dealers outside of California and the

Section 177 states will be subject to the same standards as those

selling to dealers within them. Accordingly, because the

California exception will not be the cause of any injury to the

petitioners, their petition is moot.10

The petitioners acknowledge that, beginning in MY 2012,

EPA’s national greenhouse gas standards will be “virtually

identical” to California’s standards. Petitioners’ Br. 8. Indeed,

notwithstanding their use of “virtually” as a qualifier, the

petitioners do not describe any way in which the standards will

differ. Nonetheless, they suggest five reasons why the waiver

decision will have other continuing effects on NADA’s

members sufficient to preserve their entitlement to review.

Those asserted continuing effects, considered individually or

cumulatively, fail to establish that the petitioners maintain a

10

See Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982)

(finding the case moot because, “while the case was pending on

appeal, the University substantially amended its regulations”); Nat’l

Mining Ass’n v. U.S. Dep’t of the Interior, 251 F.3d 1007, 1011 (D.C.

Cir. 2001) (holding that the agency’s revision of challenged

regulations mooted a challenge to those regulations); Motor & Equip.

Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458-59 (D.C. Cir. 1998)

(holding that California’s elimination of a regulatory requirement

mooted a challenge to that requirement); Motor & Equip. Mfrs. Ass’n,

Inc. v. EPA, 627 F.2d 1095, 1105 n.18 (D.C. Cir. 1979) (same).

25

“legally cognizable interest in the outcome,” U.S. Parole

Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (internal

quotation marks omitted).

First, the petitioners argue that, even though California and

federal standards will be virtually identical in MY 2012, their

members will suffer injury because they will be subject to

enforcement by both EPA and California if they sell

noncompliant cars. But as the respondents point out, there is no

such thing as a “noncompliant car” for purposes of the

California greenhouse gas standards. Those standards impose

fleet-average requirements, see CAL. CODE REGS. tit. 13 §

1961.1(a)(1), and accordingly regulate manufacturers, not

dealers, id.; see Petitioners’ Br. 7 (acknowledging that

California’s “standards do not . . . require that individual

vehicles meet certain emission levels,” but rather require

compliance “on a California fleet-wide basis” (emphasis in

original)). Thus, an automobile manufacturer that fails to

comply with the fleet-average requirements in MY 2012 could

conceivably face penalties from both the federal government and

California. But there is no evidence in the record that the

possibility of dual enforcement against manufacturers will cause

any more mix-shifting or price increases -- the only injuries

identified for dealers -- than federal enforcement alone.

Second, the petitioners point out that some of the Section

177 states that enforce California’s standards have not yet

amended their regulations to acquiesce in the national standards

as California has. As a result, the petitioners contend,

manufacturers will have to comply with the original California

standards in those states, and the result will be mix-shifting and

price increases for NADA’s dealer members in those states. But

the only two dealer-members that NADA has specifically

identified as injured by the California exemption are located in

states that have already expressly acquiesced in the federal

26

standards: California and Maryland.11 If NADA has standing,

it is only because at least one of those dealers has standing, see

Summers, 129 S. Ct. at 1152, and if the claims of both are moot,

then NADA’s claims are moot as well, see Munsell 509 F.3d at

584. In any event, all of the Section 177 states are statutorily

obligated to ensure that any “standards relating to control of

emissions” that they seek to enforce are “identical to the

California standards for which a waiver has been granted.” 42

U.S.C. § 7507 (emphasis added). Because those California

standards now provide that compliance with the federal

standards constitutes compliance with the state’s for MYs 2012-

16, so must the standards of all the Section 177 states.12

11

California has already amended its regulations to accept

compliance with the national standards, see CAL. CODE REGS. tit. 13

§ 1961.1(a)(1)(A)(ii), and Maryland has announced that it will do so

as well, see 38 Md. Reg. 67, 125-27 (Jan. 14, 2011).

12

In a footnote to their reply brief, petitioners worry that

California’s deemed-to-comply amendment might be considered an

“enforcement mechanism” rather than a “standard,” and hence not be

subject to the “identicality requirement” of § 7507. See Petitioners’

Reply Br. 7 n.2 (citing Motor Vehicle Mfrs. Ass’n v. N.Y. State Dep’t

of Envtl. Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996)

(distinguishing between standards and enforcement mechanisms)).

Although that issue is not before us on this appeal, we find such a

result highly unlikely. California’s amendment modifies the

substantive emissions standards with which manufacturers must

comply in MY 2012, and it therefore bears little resemblance to

“enforcement mechanisms” such as “periodic testing and maintenance

requirements,” Am. Auto. Mfrs. Ass’n v. Cahill, 152 F.3d 196, 200 (2d

Cir.1998). California agrees, see California Br. 8, and the petitioners

acknowledge that this is “the better view,” Oral Arg. Recording 13:20-

14:00.

27

Third, the petitioners contend that they are under a

continuing threat of injury from California’s standards because,

if the federal standards are invalidated in a pending court case,

the California standards could be reimposed. But the federal

regulations are currently in force, subject to the usual

presumption of validity, see New York v. EPA, 413 F.3d 3, 22

(D.C. Cir. 2005), and at this point the possibility that they may

be invalidated is nothing more than speculation.13 Nor is there

any way in which we can realistically move that possibility out

of speculation’s realm: the petitioners have not even attempted

to set forth the arguments in favor and against such an

invalidation; even if they had, we would be disinclined to

conduct the kind of “trial within a trial” necessary to assess the

likelihood that a challenge to the federal standards would

prevail. The prospect that litigants could be injured “if” a court

were someday to invalidate the federal regulations and “if”

California thereafter were to reimpose its standards, is little

different from the prospect that any litigant could be injured “if”

EPA (or Congress) were eventually to enact a rule it presently

had under consideration. To seek judicial review of such a

contemplated-but-not-yet-enacted rule is to ask the court for an

advisory opinion in connection with an event that may never

come to pass. Federal courts decline to offer such opinions

13

In Louisiana Environmental Action Network v. Browner, this

court rejected a petitioner’s standing to challenge EPA regulations that

would allow EPA to approve a state air pollution requirement and then

enforce it as a federal requirement. 87 F.3d at 1383-84. The

petitioner had “suggest[ed] that federal enforcement of state

regulations may mean that, if a state court voids the state air-pollution

rule, federal officials still may enforce it.” Id. at 1384.

Acknowledging that this prediction “may be possible,” we concluded

that it was not “so probable as to convince us that the [challenged

regulations] somehow affect the utilities petitioners in their current

conduct to the extent that their ‘injury’ may be deemed actual or

imminent at this time.” Id.

28

because “Article III of the Constitution limits federal ‘Judicial

Power’ . . . to ‘Cases’ and ‘Controversies,’” a limitation that

“defines the ‘role assigned to the judiciary in a tripartite

allocation of power to assure that the federal courts will not

intrude into areas committed to the other branches of

government.’” Geraghty, 445 U.S. at 395-96.14

Fourth, the petitioners appear to suggest that, even if the

federal standards are not invalidated, California “could withdraw

its pledge to follow [those] standards whenever it likes and

enforce its state-specific standards instead.” Petitioners’ Reply

Br. 7. But “the mere power to reenact a challenged law is not a

sufficient basis on which a court can conclude that a reasonable

expectation of recurrence exists. Rather, there must be evidence

indicating that the challenged law likely will be reenacted.”

14

We acknowledge there is an argument that the sixty-day

window for judicial review specified in 42 U.S.C. § 7607(b) could bar

the petitioners from challenging the 2009 waiver decision if they

cannot sue until (and unless) the federal regulations are invalidated.

We note, however, that § 7607(b) itself recognizes an exception to the

sixty-day bar for petitions “based solely on grounds arising after such

sixtieth day.” § 7607(b)(1). And, as we have repeatedly held, “[this]

provision for judicial review . . . for suits based on newly arising

grounds encompasse[s] the occurrence of an event that ripens a

claim.” Am. Road & Transp. Builders Ass’n v. EPA, 588 F.3d 1109,

1113-14 (D.C. Cir. 2009); see La. Envtl Action Network, 87 F.3d at

1381 (stating that “[i]f, at some later time, one or more of the parties

develops a justiciable claim, they will be able to seek judicial relief”).

Although we do not now decide whether this exception would permit

the petitioners to reassert their challenge in the event the federal

standards are vacated and the California standards reimposed, we do

note that our precedent permitting an exception to the sixty-day

window for newly ripened suits renders even more speculative the

petitioners’ claim that they must be permitted to sue now to prevent

the possibility of future injury.

29

Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346,

349 (D.C. Cir. 1997); see Rio Grande Silvery Minnow v. Bureau

of Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010) (“[T]he

‘mere possibility’ than an agency might rescind amendments to

its actions or regulations does not enliven a moot controversy.”

(citation omitted)).15 “There is no evidence in the record to

suggest that [California] might repeal the [deemed-to-comply

amendment]” while the federal regulations remain intact, Nat’l

Black Police Ass’n, 108 F.3d at 349, and the petitioners have

offered no reason why California would wish to do so. In any

event, the petitioners do not anywhere describe the differences

between the original California and the new federal standards

for MY 2012-16, and hence do not show how enforcement of

the state-specific regulations -- even if reimposed -- would cause

them injury beyond that caused by intact federal regulations.

Finally, the petitioners contend that “the current Waiver

Decision may make it easier for California to obtain waivers for

future [greenhouse gas] standards and regulations -- and

concomitantly more difficult for NADA’s members to challenge

those waiver requests.” Petitioners’ Br. 26-27. They note that,

“[a]ccording to EPA, if a California emissions standard has

15

As we said in a recent case involving FTC regulations:

It does not matter that the FTC might hereafter pursue

notice-and-comment rulemaking to promulgate new rules

. . . . Nor does it matter that the agency may pursue a new

enforcement policy . . . . These are merely hypothetical

possibilities -- indeed, the parties may even view them as

likely possibilities. But they are nothing more than

possibilities regarding regulations . . . that do not presently

exist. This is not enough to give rise to a live dispute. . . .

The case now before the court is moot.”

Am. Bar Ass’n v. FTC, 2011 WL 744659, at *5.

30

already received a Clean Air Act waiver, then the agency is not

required to subject amendments to that standard to ‘full waiver

analysis,’ so long as the amendments are ‘within-the-scope’ of

a previously granted waiver.” Id. at 26 (quoting 75 Fed. Reg.

11,878, 11,879 (Mar. 12, 2010)). Thus, EPA’s approval of the

instant waiver request assertedly “eases the standards under

which certain, future waiver requests are likely to be

considered” by the agency. Id.

This possible future injury is again speculative. Keeping in

mind the difficulty the petitioners have had in showing that the

current California regulations will injure NADA’s identified

members, it is even more speculative that California will

someday amend those regulations in a way that both injures

those members and comes within the scope of the current

waiver. Moreover, even if that eventuality should come to pass,

it seems at least more likely than not that NADA would then be

able to challenge the current waiver -- and thus eliminate its

precedential value. See supra note 14.

The petitioners maintain that the possibility that this injury

will come to pass is more than speculative because California

has already announced that it is developing stricter greenhouse

gas standards for MYs 2017-25. See Petitioners’ Reply Br. 8 n.3

(citing Statement of the California Air Resources Board

Regarding Future Passenger Vehicle Greenhouse Gas Emission

Standards, at 1 (May 21, 2010), available at

http://www.arb.ca.gov/newsrel/2010/VehState.pdf (hereinafter

CARB Statement on Future Standards)). But the federal

government has also announced plans to develop “stringent”

greenhouse gas and fuel economy standards for those same

model years. See 2017 and Later Model Year Light Duty

Vehicle GHG Emissions and CAFE Standards (Notice of

Intent), 75 Fed. Reg. 62,739, 62,741 (Oct. 13, 2010). According

to the federal announcement, stakeholders agree that it will be

31

important to “maintain a single nationwide program” in those

years, id. at 62,742, and California’s announcement states that

its goal is that “compliance with new national standards after

2016 may serve to meet the new 2017-2025 model year

California standards,” CARB Statement on Future Standards, at

1. Thus, far from removing the petitioners’ asserted injury from

the realm of speculation, these announcements only reinforce

the conclusion that it is entirely speculative.

3. In sum, even if NADA had standing when it initially

sought review, “events have so transpired that [our] decision

will neither presently affect the parties’ rights nor have a more-

than-speculative chance of affecting them in the future,” Clarke,

915 F.2d at 701 (internal quotation marks omitted). Because

“this case has ‘lost its character as a present, live controversy of

the kind that must exist if we are to avoid advisory opinions on

abstract questions of law,’” Schmid, 455 U.S. at 103 (quoting

Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam)), it is now

moot.

IV

At oral argument, the petitioners suggested that, if we

conclude the promulgation of national greenhouse gas standards

for MYs 2012-16 renders this suit moot, we should vacate

EPA’s waiver decision. The petitioners’ suggestion of vacatur

is forfeited, however, as they raised it for the first time at oral

argument. See Orion Sales, Inc. v. Emerson Radio Corp., 148

F.3d 840, 843 (7th Cir. 1998) (holding that the appellant waived

its request for vacatur by not raising it until oral argument); Ark

Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir.

2003) (holding that contentions first raised at oral argument are

waived); see also United States v. Munsingwear, 340 U.S. 36,

40-41 (1950) (holding that a party can waive its right to vacatur

32

of a lower-court order that becomes moot on appeal). In any

event, vacatur is not called for here.

In United States v. Munsingwear, the Supreme Court noted

that vacatur “is commonly utilized . . . to prevent a [district

court] judgment, unreviewable because of mootness, from

spawning any legal consequences.” 340 U.S. at 40. In A.L.

Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329-

30 (1961), the Court extended this practice to “unreviewed

administrative orders,” vacating an order of the Interstate

Commerce Commission (ICC) authorizing proposed railroad

rates because -- before the ICC’s approval order could be

judicially reviewed -- the appellee railroads mooted the case by

withdrawing the rates. We, too, have routinely vacated agency

orders rendered unreviewable by intervening events. See, e.g.,

Am. Family Life Ins. Co. v. FCC, 129 F.3d 625, 630-31 (1997)

(vacating FCC order, which found that AFLAC had violated the

Communications Act, after the case became moot because

AFLAC sold its television stations and dissolved); Radiofone v.

FCC, 759 F.2d 936 (D.C. Cir. 1985) (concluding that the

petitioners’ challenge to an FCC ruling in favor of a competitor

was moot because the competitor went out of business, and

vacating the ruling at issue).

But the EPA decision at issue here is not unreviewable; it

is only the challenge brought by the petitioners in this case that

is beyond our authority to review. EPA’s promulgation of

national greenhouse gas emissions standards, and California’s

acquiescence in those standards, have rendered the dealers’

already tentative claim of injury so speculative that a suit on

their behalf cannot satisfy Article III’s case-or-controversy

requirement. If the suit had been brought on behalf of

automobile manufacturers rather than dealers, however, it would

not necessarily have been mooted by those developments --

provided that the manufacturers could persuasively show they

33

would suffer additional injury from the costs of direct, albeit

duplicative, regulation by California. To vacate the agency’s

action under the present circumstances would thus be akin to

vacating a district court decision that was not appealed by either

of the principal parties, but rather by an intervenor whose

particular interest in the matter had evaporated before the

appellate court could rule.

Moreover, notwithstanding the absence of continuing injury

to the petitioner automobile dealers, California retains a

sovereign interest in being able to enforce its own regulations

against automobile manufacturers -- just as states have a

sovereign interest in enforcing state drug laws even if they

coincide with federal drug laws. We will not vacate the waiver

decision granting California this enforcement authority simply

because the particular petitioners before us lack the requisite

personal stake to sustain their challenge.

Indeed, in his separate opinion in Radiofone v. FCC, then-

Judge Scalia cautioned against such an application of the

Munsingwear rule. That rule, he explained, “does not apply to

[agency orders] automatically, since what moots the dispute

before us does not necessarily nullify the agency action.” 759

F.2d at 940 (Scalia, J., concurring). In Radiophone itself, he

noted, it was appropriate to vacate the challenged FCC ruling

because the challengers’ case was mooted when the recipient of

the favorable ruling -- a competitor of the challengers -- went

out of business. But, Judge Scalia pointed out, while “the

dispute before us would just as effectively be mooted” if the

challengers rather than the recipient had gone out of business, in

that case “the agency action would continue to have present

concrete effect” and “we would assuredly not vacate the

agency’s approval of [the recipient’s] continuing operations.”

Id. at 940-41.

34

Likewise here, we would assuredly not vacate the agency’s

approval of California’s standards if the case were mooted

simply because the two identified automobile dealers had gone

out of business. Nor will we vacate it because intervening

events have obviated any harm those dealers might suffer as a

consequence of the standards. Notwithstanding the absence of

a continuing concrete effect on the petitioners, the waiver

decision “continue[s] to have present concrete effect” on

California (and likely on manufacturers as well) by authorizing

the state’s standards. And that is sufficient to render “the

equitable remedy of vacatur,” U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 25 (1994), inappropriate in

this case.

V

“In limiting the judicial power to ‘Cases’ and

‘Controversies,’ Article III of the Constitution restricts it to the

traditional role of Anglo-American courts, which is to redress or

prevent actual or imminently threatened injury to persons caused

by private or official violation of law. Except when necessary

in the execution of that function, courts have no charter to

review and revise . . . executive action.” Summers, 129 S. Ct. at

1148. Here, there is no such necessity. Even if EPA’s decision

to grant California a waiver for its emissions standards once

posed an imminent threat of injury to the petitioners -- which is

far from clear -- the agency’s subsequent adoption of federal

standards has eliminated any independent threat that may have

existed. Under these circumstances, the petitioners’ challenge

amounts to a request for an advisory opinion regarding the

waiver’s validity. And that, of course, is precisely the kind of

opinion we are without authority to give. Preiser v. Newkirk,

422 U.S. at 401.

35

For the foregoing reasons, the petition for review is

dismissed for want of jurisdiction.

So ordered.