Grocery Manufacturers Ass'n v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2012 Decided August 17, 2012

No. 10-1380

GROCERY MANUFACTURERS ASSOCIATION, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

GROWTH ENERGY,

INTERVENOR

Consolidated with 10-1414, 11-1002, 11-1046, 11-1072,

11-1086

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.

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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.

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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

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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

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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.

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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

required evidentiary 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 (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 (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 the judicial process,” Lujan, 504

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U.S. at 560. See also Fla. Audubon Soc’y v. Bentsen, 94 F.3d

658, 663 (D.C. Cir. 1996) (en banc). To establish Article III

standing, a party must establish three constitutional minima: (1)

that the party has suffered an “injury in fact,” (2) that the injury

is “fairly traceable” to the challenged action of the defendant,

and (3) that it is “likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” Lujan, 504

U.S. at 560-61 (internal quotation marks, alterations, and

citations omitted).

The party seeking to invoke the jurisdiction of the federal

court “bears the burden of establishing these elements.” Id. at

561. To do so, it must “support each element of its claim to

standing ‘by affidavit or other evidence.’” Sierra Club, 292

F.3d at 899 (quoting Lujan, 504 U.S. at 561). On direct review

of agency action, it must provide that support in its opening

brief. Public Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1289 (D.C.

Cir. 2007). If the petitioner’s standing is self-evident (as when

the petitioner is the object of an administrative action), “no

evidence outside the administrative record is necessary.” Sierra

Club, 292 F.3d at 900. But when the administrative record fails

to establish a substantial probability as to any element of

standing, “the petitioner must supplement the record to the

extent necessary to explain and substantiate its entitlement to

judicial review.” Id.

B.

As an initial matter, we note that each separate petitioner

in this case is a trade association. Each petitions for review of

EPA’s waiver decisions on behalf of its members, e.g., car

manufacturers, petroleum refiners, and cereal distributors. This

is not in itself a problem. An association has standing to sue on

its members’ behalf if it can show that (1) a member “would

have standing to sue in [its] own right,” (2) “the interests the

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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.” Id. at 898. We have no reason to believe any

petitioners fail to meet the latter two requirements. We

therefore need consider only whether any petitioner association

has demonstrated that any of its members would have standing

to sue in its own right.

We need not conclude that all petitioners have standing. As

all petitioners raise the same issues, if we determine that even

one of the petitioners has Article III standing, we will then have

established our jurisdiction to consider the merits of the

petitions. See, e.g., Military Toxics Project v. EPA, 146 F.3d

948, 954 (D.C. Cir. 1998). Standing is not self-evident for any

of the entities Petitioners represent. EPA’s waiver decisions do

not on their face directly impose regulatory restrictions, costs,

or other burdens on any of these types of entities. This, of

course, makes Petitioners’ task more difficult. “The Supreme

Court has stated that standing is ‘substantially more difficult to

establish’ where, as here, the parties invoking federal

jurisdiction are not ‘the object of the government action or

inaction’ they challenge.” See Public Citizen, 489 F.3d at 1289

(quoting Lujan, 504 U.S. at 562.). Petitioners have to

demonstrate that EPA’s actions—in particular, approving E15

via partial waivers—have caused any one of their members an

injury in fact for which we can provide redress in this action.

Each industry group advances a theory of standing, but none is

in fact adequate to meet the burden of establishing standing

under Article III.

1. The Engine-Products Group

The engine-products group advances a convoluted theory of

standing. It begins with the assertion that its members

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manufacture cars, boats, and power equipment with engines not

made for, certified, or warranted to use ethanol blends greater

than E10. As a result of EPA’s partial waivers, they assert, E15

will enter the fuel market and consumers will use it in their

products. Such use, the engine manufacturers claim, “may”

harm their engines and emission-control devices and systems.

Pet’rs Br. at 17. This will supposedly subject the engine

manufacturers to liability: consumers may bring warranty and

safety-related claims against the manufacturers under state or

federal law, and the government may impose a recall of some

engines or vehicles.

This hypothetical chain of events fails as a showing of

Article III standing. An Article III injury in fact must be “(i)

‘concrete and particularized’ rather than abstract or generalized,

and (ii) ‘actual or imminent’ rather than remote, speculative,

conjectural or hypothetical.” In re Navy Chaplaincy, 534 F.3d

756, 759–60 (D.C. Cir. 2008). It must also be “substantially

probable” that the challenged agency action caused that injury.

See Fla. Audubon, 94 F.3d at 663 (citing Kurtz v. Baker, 829

F.2d 1133, 1144 (D.C. Cir. 1987)). The engine-products group’s

theory of standing meets neither of these requirements.

To begin with, the engine manufacturers provide almost no

support for their assertion that E15 “may” damage the engines

they have sold, subjecting them to liability. They suggest that

damage may occur via two avenues. First, they contend that

consumers will use E15 in the model-year 2001 and newer light-

duty vehicles and engines for which it has been approved, and

that E15 may harm those engines (contrary to EPA’s findings).

They support this assertion, however, with a single reference to

internal testing by Mercedes-Benz documenting a 2 percent hit

to fuel economy and “potential vehicle damage” from the use of

E15 in Mercedes vehicles. This is hardly evidence of a

substantial probability that E15 will cause engine harm.

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Second, the engine-products group maintains that

consumers will “misfuel,” i.e., fuel non-approved vehicles and

equipment with E15, and that E15 will cause damage to and

emissions failures in such engines, including boat engines and

power equipment motors, for which engine manufacturers may

incur liability. This convoluted theory of causation will not

meet Petitioners’ burden. It is well established that “[c]ausation,

or ‘traceability,’ examines whether it is substantially probable

that the challenged acts of the defendant, not of some absent

third party, will cause the particularized injury of the plaintiff.”

Fla. Audubon Soc’y v. Bentsen, 94 F.3d at 663 (citing Allen v.

Wright, 468 U.S. 737, 753 n.19 (1984)) (other citations omitted).

As in Florida Audubon, Allen v. Wright, and numerous other

cases cited in Florida Audubon, any injury to the engine-product

petitioners—speculative at best—depends upon the acts of third

parties not before the court. If the contemplated injury is to

occur at all, it will require that consumers use the fuel in engines

for which it is neither designed nor approved, suffer damages to

those engines as a result, and bring successful warranty or other

liability lawsuits against engine-products petitioners. These

petitioners attempt to drag their claims across the causation

threshold by simply listing federal laws that either impose

liability for emission warranty claims, see 42 U.S.C. § 7541, or

provide for recall of nonroad engines and vehicles that fail to

meet emission standards, id. § 7547. This is not sufficient. That

a theoretical possibility of lawsuits exists does not establish the

required probability that the third parties will misfuel in the

fashion posited by petitioners, then bring the lawsuits, then

prevail. The last link is particularly problematic; the engine-

products petitioners have failed to point to any grounds for a

meritorious suit against them. As they admit, Pet’rs’ Br. at 18,

their engines are not warranted for E15, nor is it clear why

manufacturers would be liable for damages from consumer-

induced misfueling. As for their recall theory, they have failed

to establish any probability that the government would recall

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engines because third parties had misfueled. This leaves yet

another weak link in their causative chain, especially given the

limited circumstances in which manufacturers are generally

subject to a recall, see Chrysler Corp. v. EPA, 631 F.2d 865, 896

(D.C. Cir. 1980).

To reiterate what we noted earlier in this discussion,

“[T]he ‘case or controversy’ limitation of Article III still

requires that a federal court act only to redress injury that fairly

can be traced to the challenged action of the defendant, and not

injury that results from the independent action of some third

party not before the court.” Simon v. Eastern Ky. Welfare Rights

Org., 426 U.S. 26, 41 (1976). The engine-products group has

not established standing to bring these petitions.

2. The Petroleum Group

The petroleum group includes associations that represent

refiners and importers, which produce petroleum products, as

well as “downstream” entities like fuel blenders and terminals,

which handle, store, or transfer those products. The petroleum

group asserts that both groups suffer an injury in fact traceable

to EPA’s waiver decisions. It argues that EPA’s partial approval

of the introduction of E15 into commerce effectively forces

refiners and importers to actually introduce E15 into commerce

because they are obligated to meet the renewable fuel

requirements of the RFS. They further assert that the

downstream entities will have to accommodate this new fuel

type. Both sets of entities will incur substantial costs as a result

of taking on E15, including “special fuel production,

transportation, and fuel segregation efforts.” Pet’rs’ Br. at 19.

Further costs will come from the “new compliance surveys and

fuel pump dispenser labeling” required by the E15 waiver

decisions. Id. In addition, these entities will purportedly face

the liability risks that come with producing a fuel that they

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contend will cause damage to misfueled vehicles.

This theory fails to establish standing. We cannot fairly

trace the petroleum group’s asserted injuries in fact—the new

costs and liabilities of introducing and dealing with E15—to the

administrative action under review in this case. That action,

EPA’s approval of the introduction of E15 for use in certain

vehicles and engines, does not force, require, or even encourage

fuel manufacturers or any related entity to introduce the new

fuel; it simply permits them to do so by waiving the CAA’s

prohibition on introducing a new fuel that is not substantially

similar to the fuel used to certify vehicles and engines under

their applicable emission standards, see 42 U.S.C. § 7545(f)(4).

In short, the only real effect of EPA’s partial waivers is to

provide fuel manufacturers the option to introduce a new fuel,

E15. To the extent the petroleum group’s members implement

that option voluntarily, any injury they incur as a result is a

“self-inflicted harm” not fairly traceable to the challenged

government conduct. See, e.g., Pub. Citizen, 489 F.3d at 1290

(citing Nat’l Family Planning & Reproductive Health Ass’n, Inc.

v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006)); Petro-Chem

Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 1989).

Petitioners maintain that the new fuel choice provided by

the partial waivers is no real choice at all. They stress that if

EPA makes E15 an option (as it did), “refiners and importers

will necessarily have to introduce E15 into commerce” to meet

their volume requirements under the RFS. Even if we were to

consider the refiners’ and importers’ decision to introduce E15

as forced rather than voluntary, it would be “forced” (under their

theory) not by the availability of E15 (which is the only effect

of the partial waivers) but rather by the RFS, which obliges

manufacturers to introduce certain volumes of renewable fuel.

In other words, if the injuries of refiners and importers are

traceable to anything other than their own choice to incur them,

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it is to the RFS, not to the partial waivers they challenge here.

In any event, Petitioners have not established that refiners

and importers will indeed have to introduce E15 to meet their

volume requirements under the RFS. The partial waivers

provide obligated parties with a new option for meeting those

requirements, but the RFS does not mandate that obligated

parties use E15 or any other particular product to meet its

requirements. In fact, as noted above, refiners and importers

may only use a capped amount of corn-based ethanol to meet

their RFS obligations, and they are already nearing that cap.

They have provided no reason why they could not instead use a

different type of fuel to meet those obligations. Of course, if

that reason is cost—either the costs of research and development

of fuels, or the costs of introduction of such a fuel— then their

choice to instead use E15 would be a decision grounded in

economics, not one forced on them by the RFS and most

certainly not by the partial waivers. Moreover, Petitioners

themselves indicated that there are still other options besides

using E15: “The RFS includes mechanisms by which the EPA

Administrator may waive the total volume of renewable fuel for

any given year or waive requirements for certain renewable

fuels.” Pet’rs’ Br. at 5 (citing 42 U.S.C. § 7545(o)(7)(A)(i)-(ii),

(D), (E), (F)). While EPA may decline to waive the RFS

requirements, lobbying the Administrator to do so is another

option at Petitioners’ disposal. In sum, Petitioners have not

demonstrated that the partial E15 waivers provide refiners and

importers with a Hobson’s choice (introduce E15 or violate the

RFS) rather than a real one, such that the costs they would

sustain by introducing E15 could be considered “forced by” or

traceable to the challenged agency action.

Petitioners offer a related argument centered on the

downstream parties. These parties own infrastructure (e.g.,

deepwater, barge, and pipeline terminals) that aids in the

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transfer, handling, and blending of petroleum products. Pet’rs’

Br. at x–xi, 19. Regardless of whether the E15 waiver can be

said to “cause” petroleum refiners and importers to begin

introducing E15, Petitioners suggest that they will introduce it

given their RFS obligations, and downstream entities will have

to expend significant resources to blend and otherwise deal with

the E15 the refiners and importers choose to introduce. In this

way, according to Petitioners, “EPA’s partial E15 waiver

therefore will require these organizations to expend enormous

resources to blend and introduce E15 into the market.” Pet’rs’

Br. at 19.

With this argument, Petitioners again wrongly identify the

actual cause of downstream entities’ choice to incur the costs of

handling E15. Neither the RFS nor the partial E15 waivers

“require” downstream entities to have anything to do with E15.

If they face any pressure to handle E15, it is likely economic in

nature. Downstream parties very well might lose business if

they decline to blend or otherwise deal with E15, but that makes

the choice to handle E15 one they make in their own self-

interest, not one forced by any particular administrative action.

In this way, Petitioners’ argument is much like one we rejected

in Petro-Chem Processing v. EPA, 866 F.2d at 438. In that case,

the Hazardous Waste Treatment Council (HWTC) challenged

EPA regulation of hazardous waste disposal in salt domes that

HWTC argued was too lax. HWTC asserted that its members

who provide cleanup services or waste brokering would be

“forced” to use geologic repositories (salt domes) under the lax

EPA standards and their use of unsafe methods would risk

greater potential liability. The court rejected this theory of

standing. We pointed out that this potential liability, “insofar as

it is incurred voluntarily, is not an injury that fairly can be traced

to the challenged action.” Id. (internal quotation marks

omitted). The members who used salt domes could avoid the

potential liability by choosing safer methods than required by

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EPA. If they chose the unsafe methods because of “competitive

pressures,” they would presumably do so “in their own self-

interest.” Id. The resulting injury would thus be “self-inflicted,

… so completely due to the [complainants’] own fault as to

break the causal chain.” Id. (internal quotation marks omitted).

So too here.

All of this is to say that Petitioners’ attempt to draw a

causal link between the E15 waivers they challenge and the

costs they would incur by introducing E15 ultimately rings

hollow. If anything is “forcing” these entities to incur the costs

of introducing a new fuel, it is the obligations set by the RFS,

competitive pressures, or some combination thereof. EPA’s

partial waivers simply provide a new choice of fuel that

manufacturers may produce. There is not a cause of those costs

providing the petroleum group with standing.

3. The Food Group

The food group’s members produce, market, and distribute

food products that require corn. This petitioner group suggests

that EPA’s partial approval of E15 will increase the demand for

corn, which is currently used to produce most ethanol on the

market. This increased demand will, according to the food

group, increase the prices their members have to pay for corn.

We need not decide here whether the food group has

established Article III standing with this theory because the

theory plainly fails to demonstrate prudential standing.1 While

we must find Article III standing before addressing the merits of

a case, see supra p. 6, “it is entirely proper to consider whether

there is prudential standing while leaving the question of

1

Chief Judge Sentelle would hold that the food group has neither

Article III nor prudential standing.

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constitutional standing in doubt, as there is no mandated

‘sequencing of jurisdictional issues.’” Grand Council of Crees

(of Quebec) v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000)

(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 575

(1999)).

To demonstrate prudential standing, the food group “must

show that the interest it seeks to protect is arguably within the

zone of interests to be protected or regulated by the statute ... in

question” or by any provision “integral[ly] relat[ed]” to it. Nat'l

Petrochem. Refiners Ass'n v. EPA, 287 F.3d 1130, 1147 (D.C.

Cir. 2002) (per curiam) (internal quotation marks omitted). The

food petitioners have not made such a showing. They point out

only that their interests are protected by EISA, the legislation

that set forth the RFS, because EISA requires EPA to review,

among other things, “the impact of the use of renewable fuels on

... the price and supply of agricultural commodities ... and food

prices” when EPA sets renewable fuel volume requirements in

the future. 42 U.S.C. § 7545(o)(2)(B)(ii)(VI). However, the

statute Petitioners challenge here is the CAA’s fuel-waiver

provision, Section 211(f)(4)—not EISA. Nor is EISA

“integral[ly] relat[ed] to Section 211(f)(4). Both statutes may

have fuel as their subject matter, and the RFS may have even

incentivized Growth Energy to apply for a waiver under Section

211(f)(4). But more is required to establish an “integral

relationship” between the statute a petitioner claims is protecting

its interests and the statute actually in question; otherwise, “the

zone-of-interests test could be ‘deprive[d] ... of virtually all

meaning.” Fed’n for Am. Immigration Reform, Inc. v. Reno, 93

F.3d 897, 903 (D.C. Cir. 1996) (quoting Air Courier Conference

of Am. v. Am. Postal Workers Union, 498 U.S. 517, 530 (1991)).

Hypothetical prudential standing to challenge action under EISA

does not give the food petitioners prudential standing to petition

for review of action taken pursuant to CAA Section 211(f)(4).

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The dissent relies on Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012), but that

decision neither changed the prudential-standing standard nor

has any particular applicability to the facts here. The food

group’s interest in low corn prices is much further removed from

a provision about cars and fuel than a neighboring land owner’s

interest is from a statute about land acquisition.

III. Conclusion

For the above reasons, we hold that no petitioner has

standing to bring these claims. We therefore dismiss all

petitions for lack of jurisdiction.

TATEL, Circuit Judge, concurring: I agree with the

dissent that the food group has Article III standing. See

Dissenting Op. at 4-6. I also agree with those circuits that

have held that prudential standing is non-jurisdictional. See id.

at 9-10 (collecting cases). This Circuit, however, has directly

held to the contrary. See, e.g., Steffan v. Perry, 41 F.3d 677,

697 (D.C. Cir. 1994) (“Prudential standing is of course, like

Article III standing, a jurisdictional concept.”); Animal Legal

Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir.

1994) (“Standing, whether constitutional or prudential, is a

jurisdictional issue which cannot be waived or conceded.”).

True, passing statements by subsequent panels may be in

some tension with these earlier decisions, see Dissenting Op.

at 10 n.4 (collecting cases), and in recent years the Supreme

Court has certainly criticized lower courts for overusing the

“jurisdictional” label, see id. at 7-8 (collecting cases). But

taken in context these cases are “too thin a reed,” id. at 9, to

permit this panel to depart from our clear prior holdings that

prudential standing is jurisdictional—no matter how much we

may think those decisions are wrong or that the Supreme

Court may be preparing to hold otherwise. See Rasul v.

Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (“A panel of this

court . . . must adhere to the law of our circuit unless that

law conflicts with a decision of the Supreme Court.” (citing

LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en

banc))); United States v. Williams, 194 F.3d 100, 107 (D.C.

Cir. 1999) (circuit precedent binding unless “eviscerat[ed]” by

subsequent Supreme Court decisions), abrogated on other

grounds by Apprendi v. New Jersey, 530 U.S. 466 (2000).

KAVANAUGH, Circuit Judge, dissenting: Federal law

establishes a renewable fuel mandate that requires gasoline

producers to introduce significant amounts of renewable fuel

(such as ethanol) into the Nation’s gasoline supply. To

maintain statutory clean air standards, however, EPA is

required to approve new fuels and fuel additives such as

ethanol, and EPA may do so only when the new fuel would

not cause any car models made after 1974 to violate federal

emissions standards. EPA had previously approved use of

E10, gasoline with up to 10% ethanol, for use in cars. But the

requirement set by the statutory renewable fuel mandate could

not be reached solely with E10. Ethanol manufacturers then

petitioned EPA to exercise its statutory waiver authority to

allow use of E15, gasoline with up to 15% ethanol. In order

to issue the waiver under the statute, EPA had to find that E15

would not cause any car models made after 1974 to fail to

meet emissions standards. EPA found that E15 could cause

emissions failures in some cars made after 1974 (namely, in

cars made between 1975 and 2000). Nonetheless, EPA still

granted the waiver. For the first time ever, EPA granted what

it termed a “partial waiver,” meaning that the waiver allowed

E15 use only in cars made after 2000.

In this suit, members of the food industry and the

petroleum industry contend that EPA’s E15 waiver is illegal.

The food group is suing because, as a result of EPA’s E15

waiver, ethanol production will increase and demand for corn

(a necessary raw material for ethanol) will rise significantly.

In turn, corn prices will rise. Therefore, food producers,

which compete directly with ethanol producers in the

upstream market for purchasing corn, will have to pay more

for corn. The petroleum group is suing because, as a result of

EPA’s E15 waiver and the statutory renewable fuel mandate,

those in the petroleum industry now must refine, sell,

transport, and store E15, incurring significant costs to do so.

2

Despite the fact that two enormous American industries

will be palpably and negatively affected by EPA’s allegedly

illegal E15 waiver, the majority opinion tosses the case for

lack of standing. Judge Tatel and I agree that the food group

has Article III standing. But the majority opinion finds that

the food group is not an aggrieved party (that is, does not

have prudential standing) for purposes of the Administrative

Procedure Act. And the majority opinion concludes that the

petroleum group’s injury is not caused by EPA’s E15 waiver

decision and that the petroleum group thus does not have

Article III standing.

This suit may proceed if either the food group or the

petroleum group has standing. In my view, both have

standing.

The food group has Article III standing because the E15

waiver, particularly in conjunction with the statutory

renewable fuel mandate, will increase the prices the food

group must pay for corn. And the food group’s prudential

standing under the APA is not contested by EPA. That

matters because prudential standing (unlike Article III

standing) is not jurisdictional, meaning that prudential

standing has been forfeited by EPA and is thus not properly

before the Court. In any event, the food group easily clears

the low bar for prudential standing under the APA.

The petroleum group has Article III standing because the

E15 waiver, in conjunction with the statutory renewable fuel

mandate, will require some petroleum companies to refine,

sell, transport, or store E15, imposing significant costs. And

even if prudential standing were not forfeited, the petroleum

group is a party regulated under the statutory waiver

3

provision; therefore, the petroleum group’s prudential

standing under the APA is undisputed.1

On the merits, I conclude that the E15 waiver violates the

statute. The waiver might be good policy; if so, Congress has

the power to enact a new law permitting E15. But under the

statute as currently written, EPA lacks authority for the

waiver. I would therefore grant the petition for review and

vacate EPA’s E15 waiver decision. I respectfully dissent.

I

The Constitution limits the jurisdiction of federal courts

to “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl.

1. One aspect of the case or controversy requirement is

standing. To sue in federal court, a plaintiff must demonstrate

Article III standing, which consists of three requirements: (1)

injury in fact – an invasion of a legally protected interest that

is concrete and particularized, and actual or imminent; (2)

causation – a fairly traceable connection between the injury

and the challenged conduct; and (3) redressability – a

likelihood that the injury will be redressed by a favorable

decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992). In the regulatory context, standing has not

been limited to those directly regulated by an agency. Rather,

under settled standing case law, those who suffer injury as a

result of an agency’s allegedly illegal regulation of someone

else can still have standing, although the analysis in such

cases is tricky (and frankly rather unpredictable).2 Article III

1

Because I find that either of these two groups has standing, I

do not address the standing of the engine products group.

2

When I refer to the food group and the petroleum group

throughout this opinion, I am using shorthand to refer to the many

such food and petroleum trade organizations and individual

businesses that have sued here. See also Maj. Op. at 7-8 (whether

4

standing is jurisdictional, meaning courts must consider the

issue even if the defendant or respondent does not assert that

the plaintiff or petitioner lacks Article III standing.

In addition, the Administrative Procedure Act’s general

cause of action for challenging agency action extends only to

parties “aggrieved” by the agency action. See 5 U.S.C. § 702.

The cause of action’s limitation to “aggrieved” parties is

referred to (somewhat loosely and imprecisely) as prudential

standing. As explained more fully below, prudential standing

is not jurisdictional, meaning that it can be forfeited and need

not be considered by the court if the defendant or respondent

does not assert it.

A

First, I will explain why the food group has standing. For

its part, EPA has not contested the food group’s Article III

and prudential standing. A majority of the Court – Judge

Tatel and I – conclude that the food group has Article III

standing. A different majority – Chief Judge Sentelle and

Judge Tatel – conclude, however, that the food group lacks

prudential standing to challenge EPA’s E15 waiver.

The food group includes producers of processed food

made with corn and those who raise livestock fed with corn.

It is hard to overestimate the significance of corn to the

American food industry. And petitioners’ submissions to

EPA and this Court reveal the following about the effects of

EPA’s E15 waiver on the food industry: In E10, up to 10% of

gasoline is made up of ethanol. In E15, up to 15% of gasoline

is made up of ethanol. That’s a 50% increase in the amount

of ethanol used. In hard numbers, with only E10 on the

trade organization has standing turns on whether any individual

member has standing).

5

market, 14 billion gallons of ethanol could be produced each

year for the Nation’s gasoline supply. With E15 on the

market, 21 billion gallons of ethanol can be produced each

year. That’s an additional 7 billion gallons of ethanol

annually produced for use in the U.S. gasoline supply. As a

result of the E15 waiver, there is likely – indeed, nearly

certain in the current market – to be a significant increase in

demand for corn to produce ethanol. The extra demand

means that corn producers can charge a higher price.

Therefore, the E15 waiver will likely cause higher corn

prices, and members of the food group that depend on corn

will be injured. See generally, e.g., Advanced Economic

Solutions, Implications for US Corn Availability Under a

Higher Blending Rate for Ethanol (June 2009), J.A. 604.

This is Economics 101 and requires no elaborate chain of

reasoning. It is no surprise that EPA – which is typically

quite aggressive in asserting standing objections in lawsuits

against it – has not contested the food group’s standing in this

case. The food group has standing under Article III.

Even apart from that analysis, the food group has Article

III standing based on our competitor standing cases. When an

agency illegally regulates an entity’s competitor in a way that

harms the entity – for example, by loosening regulation of the

competitor – we have said that the entity has Article III

standing to challenge the allegedly illegal regulation. See,

e.g., Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010)

(“The doctrine of competitor standing addresses the first

requirement [of Article III standing] by recognizing that

economic actors suffer an injury in fact when agencies lift

regulatory restrictions on their competitors or otherwise allow

increased competition against them.”) (internal quotation

marks and brackets omitted); Honeywell International Inc. v.

EPA, 374 F.3d 1363, 1369 (D.C. Cir. 2004) (“it is well

6

established that parties suffer cognizable injury under Article

III when an agency lifts regulatory restrictions on their

competitors or otherwise allows increased competition”)

(internal quotation marks and brackets omitted); Louisiana

Energy & Power Authority v. FERC, 141 F.3d 364, 367 (D.C.

Cir. 1998) (“We repeatedly have held that parties suffer

constitutional injury in fact when agencies lift regulatory

restrictions on their competitors or otherwise allow increased

competition.”). Here, EPA’s E15 waiver loosens a

prohibition on gasoline and ethanol producers and thereby

harms entities such as the food group that directly compete

with gasoline and ethanol producers in the upstream market

for purchase of corn. See Sherley, 610 F.3d at 72-74

(similarly finding doctors have competitor standing after

agency loosened restrictions and thereby allowed increased

competition in upstream market for grants that fund research).

Our competitor standing precedents thus independently

support Article III standing for the food group.

A majority of the Court – Judge Tatel and I – agree that

the food group has Article III standing. But Chief Judge

Sentelle and Judge Tatel conclude that the food group lacks

prudential standing.

Contrary to their majority opinion, I would conclude that

prudential standing likewise poses no barrier for the food

group. To begin with, EPA did not raise prudential standing

as a defense to this lawsuit. That’s critically important

because prudential standing is not jurisdictional and thus can

be forfeited when the defendant or respondent fails to assert

it. Because EPA did not challenge the food group’s

prudential standing, any prudential standing objection is

forfeited.

7

The majority opinion concludes that prudential standing

is jurisdictional. See Maj. Op. at 15-17 (rejecting food

group’s claims solely on prudential standing grounds); Maj.

Op. at 2, 17 (dismissing all claims, including those of food

group, for lack of jurisdiction).

In my view, Supreme Court precedent makes clear,

however, that prudential standing is not jurisdictional.

Prudential standing concerns who may sue; it is an aspect of

the cause of action that stems from the Administrative

Procedure Act’s limiting its cause of action to “aggrieved”

parties. See Bond v. United States, 131 S. Ct. 2355, 2362-63

(2011); Steel Co. v. Citizens for a Better Environment, 523

U.S. 83, 97 & n.2 (1998).3 Prudential standing is not

jurisdictional because prudential standing has not been ranked

by Congress as jurisdictional and is not a limitation on a

court’s authority to hear a case, as opposed to a limitation on

who may sue to challenge a particular agency action. See

Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243-44

(2010).

In recent years, the terminology of jurisdiction has been

put under a microscope at the Supreme Court. And the Court

has not liked what it has observed – namely, sloppy and

profligate use of the term “jurisdiction” by lower courts and,

at times in the past, the Supreme Court itself. These recent

Supreme Court cases have significantly tightened and focused

the analysis governing when a statutory requirement is

jurisdictional. In Reed Elsevier, for example, the Court

emphasized that a statutory requirement is jurisdictional when

it speaks to the power of a court to hear a case rather than to

3

The APA provides: “A person suffering legal wrong because

of agency action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is entitled to judicial

review thereof.” 5 U.S.C. § 702.

8

the rights of or restrictions on the parties. Id. at 1243; see

also Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)

(“Recognizing our less than meticulous use of the term in the

past, we have pressed a stricter distinction between truly

jurisdictional rules, which govern a court’s adjudicatory

authority, and nonjurisdictional claim-processing rules, which

do not.”) (internal quotation marks omitted); Henderson ex

rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011)

(“We have urged that a rule should not be referred to as

jurisdictional unless it governs a court’s adjudicatory

capacity, that is, its subject-matter or personal jurisdiction.

Other rules, even if important and mandatory, we have said,

should not be given the jurisdictional brand.”) (citations

omitted); Bowles v. Russell, 551 U.S. 205, 213 (2007) (“the

notion of subject-matter jurisdiction obviously extends to

classes of cases falling within a court’s adjudicatory

authority”) (internal quotation marks and ellipsis omitted);

Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006)

(“Jurisdiction, this Court has observed, is a word of many, too

many, meanings.”) (internal quotation marks omitted);

Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“Clarity would

be facilitated if courts and litigants used the label

‘jurisdictional’ not for claim-processing rules, but only for

prescriptions delineating the classes of cases (subject-matter

jurisdiction) and the persons (personal jurisdiction) falling

within a court’s adjudicatory authority.”).

The APA cause of action – which speaks in terms of

giving “aggrieved” parties a cause of action – does not

address the power of the court to hear the case. Therefore, it

is quite obviously not jurisdictional under the recent Supreme

Court precedents.

Indeed, although the Supreme Court has not yet directly

addressed whether prudential standing is jurisdictional, the

9

Court has suggested that it is not. In Tenet v. Doe, the Court

noted that prudential standing is a “threshold question” that

“may be resolved before addressing jurisdiction.” 544 U.S.

1, 7 n.4 (2005) (emphasis added). While that snippet alone

may be too thin a reed on which to base a definitive

conclusion, it certainly is consistent with the thrust of the

recent Supreme Court precedents on jurisdiction and points us

further in the direction of saying that prudential standing is

not jurisdictional.

Several courts of appeals have addressed the prudential

standing issue in recent years – that is, since the Supreme

Court’s intensified focus on proper use of the term

jurisdiction. And those courts likewise have determined that

prudential standing is not jurisdictional. See, e.g., Board of

Mississippi Levee Commissioners v. EPA, 674 F.3d 409, 417

(5th Cir. 2012) (“Unlike constitutional standing, prudential

standing arguments may be waived.”); Independent Living

Center of Southern California, Inc. v. Shewry, 543 F.3d 1050,

1065 n.17 (9th Cir. 2008) (“Unlike the Article III standing

inquiry, whether ILC maintains prudential standing is not a

jurisdictional limitation on our review. By failing to articulate

any argument challenging ILC’s prudential standing, the

Director has waived that argument.”) (citation and internal

quotation marks omitted); Rawoof v. Texor Petroleum Co.,

521 F.3d 750, 756 (7th Cir. 2008) (“Prudential-standing

doctrine is not jurisdictional in the sense that Article III

standing is.”) (internal quotation marks omitted); Finstuen v.

Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007) (“Prudential

standing is not jurisdictional in the same sense as Article III

standing. . . . We could therefore decline to address this

argument, as it was not raised in the court below.”); Gilda

Industries, Inc. v. United States, 446 F.3d 1271, 1280 (Fed.

Cir. 2006) (“In the end, we do not need to reach or decide the

question whether Gilda satisfies the standing requirements of

10

the Administrative Procedure Act, because the government

did not contend in its brief that Gilda’s complaint should be

barred by the zone of interests test. The government has thus

waived that argument.”); see also, e.g., American Iron & Steel

Institute v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999)

(“We can pretermit the more difficult question regarding

whether the Doctors’ members’ interests fall within the zone

of interests protected by the OSH Act because prudential

standing is flexible and not jurisdictional in nature.”)

(citations omitted).4

4

Some older cases from this Court said that prudential

standing was jurisdictional. See, e.g., Animal Legal Defense Fund,

Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994). But our more

recent cases have indicated that prudential standing is not

jurisdictional. See American Chiropractic Ass’n v. Leavitt, 431

F.3d 812, 816 (D.C. Cir. 2005) (contrasting “the less-than-

demanding zone-of-interest test” with “[t]he jurisdictional

question”); Toca Producers v. FERC, 411 F.3d 262, 265 n.* (D.C.

Cir. 2005) (“the prudential standing doctrine, like the abstention

doctrine, represents the sort of threshold question that may be

resolved before addressing jurisdiction”) (internal quotation marks

and brackets omitted); Amgen Inc. v. Smith, 357 F.3d 103, 111

(D.C. Cir. 2004) (“That Amgen has prudential standing does not

resolve this appeal, however. Another threshold issue is whether

the court has jurisdiction to entertain Amgen’s complaint.”); see

also Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir. 2009)

(Ginsburg, J., concurring) (citing Tenet, 544 U.S. at 6 n.4).

To the extent older cases assumed prudential standing to be

jurisdictional, that assumption is no longer correct after Supreme

Court cases such as Reed Elsevier. There, the Supreme Court

expressly “encouraged federal courts” to pay better attention to the

distinction between jurisdictional and non-jurisdictional statutory

requirements and stated that a statutory limitation generally is

jurisdictional only if it speaks to the power of the courts. 130 S. Ct.

at 1243-44; see also Gonzalez, 132 S. Ct. at 648 (“Courts, we have

11

In short, respondent EPA has not raised prudential

standing. EPA has thus forfeited the argument. Contrary to

the weight of authority and the direction marked by the

Supreme Court, the majority opinion here concludes that

prudential standing is jurisdictional. See Maj. Op. at 2, 15-17.

The majority opinion thus creates a deep and important circuit

split on this important issue. In my respectful view, the

Supreme Court’s recent decisions on jurisdiction show that

the majority opinion is incorrect on this point.5

said, should not lightly attach those drastic consequences to limits

Congress has enacted.”) (internal quotation marks omitted);

Kontrick, 540 U.S. at 455 (“Clarity would be facilitated if courts

and litigants used the label ‘jurisdictional’ not for claim-processing

rules, but only for prescriptions delineating the classes of cases

(subject-matter jurisdiction) and the persons (personal jurisdiction)

falling within a court’s adjudicatory authority.”).

I certainly respect Judge Tatel’s different view on the status of

this Court’s older precedents on this issue. But I believe our duty

here is to obey the clear charge given by the Supreme Court rather

than to cling to a stale slice of our precedent – precedent which not

only has been undermined by subsequent Supreme Court decisions

but also has not been followed by our Court in several recent cases.

5

To be sure, intervenor Growth Energy has raised prudential

standing even though EPA did not. But this Court has repeatedly

held that intervenors generally may not raise arguments not raised

by the parties. See, e.g., Illinois Bell Telephone Co. v. FCC, 911

F.2d 776, 786 (D.C. Cir. 1990). There is no reason to depart from

that general rule here.

Indeed, the rule preventing expansion of the case by

intervenors serves important purposes, especially in our

administrative law jurisprudence. The Government as defendant or

respondent may want to waive or forfeit certain non-jurisdictional,

non-merits threshold defenses so as to permit or obtain a ruling on

the merits. In our adversary legal system, an intervenor does not

and should not have the unilateral right to thwart the Government’s

12

Even if prudential standing were jurisdictional and we

therefore had to consider the issue notwithstanding EPA’s

failure to raise it, I would conclude that the food group has

prudential standing for either of two independent reasons.

First, members of the food group are “aggrieved” parties.

To be “aggrieved” for purposes of the APA and to have

prudential standing, a party must be “arguably within the zone

of interests to be protected or regulated by the statute that he

says was violated.” Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)

(internal quotation marks omitted). The Supreme Court has

repeatedly emphasized that prudential standing is a low bar,

writing just a few months ago: “The prudential standing test

. . . is not meant to be especially demanding. . . . We do not

require any indication of congressional purpose to benefit the

would-be plaintiff. And we have always conspicuously

included the word ‘arguably’ in the test to indicate that the

benefit of any doubt goes to the plaintiff. The test forecloses

suit only when a plaintiff’s interests are so marginally related

to or inconsistent with the purposes implicit in the statute that

it cannot reasonably be assumed that Congress intended to

permit the suit.” Id. (footnote, citation, and some internal

quotation marks omitted).

Importantly, in “determining whether a petitioner falls

within the zone of interests to be protected by a statute, we do

not look at the specific provision said to have been violated in

complete isolation, but rather in combination with other

provisions to which it bears an integral relationship.”

National Petrochemical & Refiners Ass’n v. EPA, 287 F.3d

1130, 1147 (D.C. Cir. 2002) (internal quotation marks and

brackets omitted); see also Clarke v. Securities Industry

ability to waive non-jurisdictional, non-merits threshold defenses to

suit.

13

Ass’n, 479 U.S. 388, 401 (1987) (“In considering whether the

‘zone of interest’ test provides or denies standing in these

cases, we first observe that the Comptroller’s argument

focuses too narrowly on 12 U. S. C. § 36, and does not

adequately place § 36 in the overall context of the National

Bank Act. As Data Processing demonstrates, we are not

limited to considering the statute under which respondents

sued, but may consider any provision that helps us to

understand Congress’ overall purposes in the National Bank

Act.”).

Here, analysis of the overall statutory scheme shows that

the food group has prudential standing. The Energy

Independence and Security Act of 2007 imposes a renewable

fuel mandate that requires introducing increasing amounts of

renewable fuel into the market every year. See 42 U.S.C.

§ 7545(o)(2)(B)(i)(I). The Act’s renewable fuel mandate

expressly commands EPA to take account of the effect on

“food prices” – that is, the price of corn. 42 U.S.C.

§ 7545(o)(2)(B)(ii)(VI). The balance Congress struck in the

renewable fuel mandate thus expressly incorporates effects on

food prices. At the same time, another statutory provision –

in the same section of the U.S. Code – requires EPA to review

and approve renewable fuel additives such as ethanol to make

sure the fuel complies with clean air standards. Those

statutory provisions together reflect a balance among the

interests of corn farmers, the petroleum industry, the food

industry, and the environment, among other interests.

Because the E15 waiver is necessary – at least in the current

market – to effectuate the statutory renewable fuel mandate,

and because the food group is explicitly within the zone of

14

interests for the renewable fuel mandate, the food group is in

the zone of interests for purposes of this suit.6

That conclusion is fortified by the Supreme Court’s

decision just a few months ago in Match-E-Be-Nash-She-

Wish Band, 132 S. Ct. at 2210-12. There, a residential

property owner claimed that the Interior Department violated

federal law – the Indian Reorganization Act – when it

acquired a parcel of land from someone else for use by an

Indian tribe as a casino. See id. at 2202-03. Perhaps needless

to say, but the Indian Reorganization Act was not designed to

benefit or regulate a property owner who objects when the

Federal Government acquires another property owner’s land

in order to help Indians. The Supreme Court nonetheless

concluded that prudential standing was satisfied. When the

“Secretary obtains land for Indians” under this statute, “she

does not do so in a vacuum. Rather, she takes title to

properties with at least one eye directed toward how tribes

will use those lands to support economic development.” Id. at

2211. Although the statute in question “specifically addresses

only land acquisition,” decisions under the statute “are closely

enough and often enough entwined with considerations of

land use to make that difference immaterial.” Id. at 2211-12.

“And so neighbors to the use (like Patchak) are reasonable –

indeed, predictable – challengers of the Secretary’s decisions:

Their interests, whether economic, environmental, or

aesthetic, come within § 465’s regulatory ambit.” Id. at 2212.

6

One respected commentator has summarized the Supreme

Court’s zone of interest precedents as follows: “An injured plaintiff

has standing under the APA unless Congress intended to preclude

judicial review at the behest of parties in plaintiff’s class.” 3

RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 16.9,

at 1521 (5th ed. 2010). The statutes at issue here certainly do not

reveal any such “intent to preclude” suits by the food group.

15

Here, EPA’s waiver decisions were similarly made with

“at least one eye” toward the renewable fuel mandate. EPA

acknowledged as much when proposing the E15 waiver. See

Notice of Receipt of a Clean Air Act Waiver Application to

Increase the Allowable Ethanol Content of Gasoline to 15

Percent; Request for Comment, 74 Fed. Reg. 18,228, 18,229

(Apr. 21, 2009) (“Growth Energy maintains that under the

renewable fuel program requirements of the Energy

Independence and Security Act of 2007, which is now

primarily satisfied by the use of ethanol in motor vehicle

gasoline, there exists a ‘blend barrier’ or ‘blendwall’ by which

motor vehicle gasoline in the U.S. essentially will become

saturated with ethanol at the 10 volume percent level very

soon. Growth Energy maintains that a necessary first step is

to increase the allowable amount of ethanol in motor vehicle

gasoline up to 15 percent (E15) in order to delay the

blendwall. . . . Growth Energy claims that the ‘blendwall’

will make those renewable fuel mandates unreachable and

that there are substantial environmental benefits associated

with higher ethanol blends.”). Because the renewable fuel

mandate in turn specifically takes account of food prices, it is

reasonable and predictable to think of members of the food

group as proper plaintiffs to challenge these waivers. What

this Court said in the decision that was affirmed in Match-E-

Be-Nash-She-Wish Band bears repeating: “As a practical

matter it would be very strange to deny Patchak standing in

this case. His stake in opposing the Band’s casino is intense

and obvious. The zone-of-interests test weeds out litigants

who lack a sufficient interest in the controversy, litigants

whose interests are so marginally related to or inconsistent

with the purposes implicit in the statute that it cannot

reasonably be assumed that Congress intended to permit the

suit. Patchak is surely not in that category.” Patchak v.

Salazar, 632 F.3d 702, 707 (D.C. Cir. 2011) (citation and

16

internal quotation marks omitted). So too with the food group

here.

Second, even apart from that analysis of Congress’s

intent in these ethanol statutes, the food group has prudential

standing because it is complaining about an agency’s

allegedly illegal decision to loosen restrictions on a

competitor of the food group – namely, the petroleum group,

which competes against the food group in the upstream

market for purchasing corn. Prudential standing does not

prevent businesses from complaining about allegedly illegal

regulation of their competitors. On the contrary, that has been

the precise scenario in several Supreme Court cases where the

Court found prudential standing. See, e.g., Clarke, 479 U.S.

at 403 (“competitors who allege an injury that implicates the

policies of the National Bank Act are very reasonable

candidates to seek review of the Comptroller’s rulings”);

Ass’n of Data Processing Service Organizations, Inc. v.

Camp, 397 U.S. 150, 153-56 (1970) (sellers of data

processing service have prudential standing to challenge

decision allowing bank to compete in offering those services).

Our cases reveal that business competitors in upstream as well

as downstream markets have prudential standing. See, e.g.,

Sherley, 610 F.3d at 75 (“We conclude the Doctors have

prudential standing. The Dickey-Wicker Amendment clearly

limits the funding of research involving human embryos.

Because the Act can plausibly be interpreted to limit research

involving ESCs, the Doctors’ interest in preventing the NIH

from funding such research is not inconsistent with the

purposes of the Amendment. . . . [T]hat is all that matters.”).

Here, the food group directly competes with gasoline and

ethanol producers in the upstream market for purchasing corn

as a raw material. Based on those competitor standing

precedents as well, the food group has prudential standing.

17

B

In the alternative, even if the food group does not have

standing, the petroleum group does. The petroleum group

consists of companies that produce, refine, transport, and

store gasoline, ethanol, and gasoline-ethanol blends. Under

the statutory renewable fuel mandate, petroleum companies

are forced to introduce a significant amount of renewable fuel

into the Nation’s gasoline supply. Using only E10 (gasoline

with up to 10% ethanol), the petroleum group companies

could not meet the statutory renewable fuel mandate. As a

result of the E15 waiver in conjunction with the renewable

fuel mandate, however, members of the petroleum group now

may – and as a factual matter, must – use E15 (gasoline with

up to 15% ethanol) in order to meet the renewable fuel

mandate. Those businesses will incur considerable economic

costs to modify their production, refining, transportation, and

storage methods. Those costs are clearly injuries for purposes

of standing. The only question here is whether those injuries

are caused by EPA’s E15 waiver.

EPA has not challenged the petroleum group’s Article III

or prudential standing. Again, I find that silence a telling

indicator that the petroleum group has standing. Moreover,

the majority opinion does not dispute that the petroleum

group has prudential standing. But according to the majority

opinion, the petroleum group has not satisfied the causation

prong of Article III standing. The majority opinion holds that

the petroleum group’s injury is self-imposed and not caused

by EPA’s E15 waiver. I disagree.

Causation requires injury that is “fairly traceable to the

defendant’s allegedly unlawful conduct.” Allen v. Wright,

468 U.S. 737, 751 (1984). It is of course true that causation

can be defeated by voluntary action – purely self-inflicted

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injury is not fairly traceable to the actions of another. See

Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C.

Cir. 1989). But causation “is not defeated merely because the

plaintiff has in some sense contributed to his own injury”;

causation “is defeated only if it is concluded that the injury is

so completely due to the plaintiff’s own fault as to break the

causal chain.” 13A CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 3531.5 (3d ed. 2008).

To show causation, the petroleum group must

demonstrate a “substantial probability” that the E15 will cause

at least one of its members to incur higher costs. Sierra Club

v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). To be sure, the

E15 waiver alone does not require the petroleum group to use

E15, make changes, and incur costs. But we cannot consider

the E15 waiver in some kind of isolation chamber. The

Energy Independence and Security Act imposes a renewable

fuel mandate that requires a certain amount of renewable fuel

to be introduced into the market every year. Pursuant to that

law, an increasing amount of renewable fuel such as ethanol –

rising to 36 billion gallons in 2022 – must be introduced into

the market. 42 U.S.C. § 7545(o)(2)(B)(i)(I). EPA regulations

identify petroleum refiners and importers who produce

gasoline as “obligated” parties – they are responsible for

introducing a percentage of the required amount into the

market each year. 40 C.F.R. § 80.1406; see also 40 C.F.R.

§§ 80.1407, 80.1427.

Before the E15 waiver, however, petroleum producers

likely could not meet the requirement set by the statutory

renewable fuel mandate. Now that EPA has allowed E15

onto the market, producers likely can meet the renewable fuel

mandate – but they must produce E15 in order to do so. So

the combination of the renewable fuel mandate and the E15

waiver will force gasoline producers to produce E15. In tort

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law, when two acts combine to create an injury, both acts are

considered causes of the injury. So it is here. In the current

market, there is at least a “substantial probability” that, in the

wake of the E15 waiver, gasoline producers will have to use

E15 in order to meet the renewable fuel mandate. And that’s

all that the petroleum group needs to show to carry its burden

on the causation issue.

Put another way, the renewable fuel mandate directly

regulates gasoline producers and requires them to introduce a

certain amount of ethanol. But there was an impediment

preventing the producers from meeting that mandate. The

E15 waiver removed the impediment, meaning that gasoline

producers now will have to use E15 to meet the mandate’s

requirements. On those facts, the petroleum group’s injury is

not self-imposed, but is directly caused by the agency action

under review in this case. For those reasons, the petroleum

group has Article III standing to challenge the E15 waiver

provision.

The majority opinion concludes otherwise. But the

fundamental flaw in the majority opinion’s reasoning is its

belief that petroleum producers could meet the renewable fuel

mandate without using E15. In the current market, the

majority opinion’s assumption is simply incorrect as a matter

of fact.

One way to answer the causation question in this case is

to ask the following: In the real world, does the petroleum

industry have a realistic choice not to use E15 and still meet

the statutory renewable fuel mandate? The answer is no, and

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intervenor Growth Energy’s claim to the contrary seems

rooted in fantasy.7

As to prudential standing for the petroleum group, EPA

does not raise the issue, meaning again that it’s forfeited. In

any event, the majority opinion itself does not dispute that the

petroleum group is in the zone of interests and has prudential

standing. Petroleum producers are directly regulated parties.

And parties directly regulated by a statute are within that

statute’s zone of interest. Thus, it is undisputed and

indisputable that the petroleum group has prudential standing.

II

Having found that there is standing, I turn to the merits of

this case. The merits are not close. In granting the E15

partial waiver, EPA ran roughshod over the relevant statutory

limits.

Section 211(f)(1) of the Clean Air Act prohibits

manufacturers of fuel or fuel additives from introducing new

fuels or fuel additives into commerce for use in car models

made after 1974, unless the new fuel or fuel additive is

“substantially similar” to certain fuels or fuel additives

already in use. 42 U.S.C. § 7545(f)(1)(B). All agree that E15

7

Under the majority opinion’s approach, it appears that a

citizen who breathes air (or at least a citizen who has breathing

problems) would have standing to challenge the E15 waiver.

That’s because the E15 waiver will cause emissions that will

negatively affect air quality. There is of course no such petitioner

involved in this suit. But standing law protects economic interests

as well as health interests. And the economic interests of the food

and petroleum groups are palpably and significantly affected by the

E15 waiver, just as are the health interests of citizens with breathing

issues.

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is not substantially similar to fuels already in use. But Section

211(f)(4) allows EPA to waive that prohibition if EPA

“determines that the applicant has established that such fuel or

fuel additive or a specified concentration thereof, and the

emission products of such fuel or fuel additive or specified

concentration thereof, 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 it has been

certified.” 42 U.S.C. § 7545(f)(4) (emphasis added). Put in

plain English, in order to approve a waiver, EPA must find

that the proposed new fuel will not cause any car model made

after 1974 to fail emissions standards.

Here, EPA issued a waiver for E15 even though it

acknowledged that E15 likely would contribute to the failure

of some cars made after 1974 (namely, those made between

1975 and 2000) to achieve compliance with emissions

standards. EPA maintains that E15 will not contribute to the

failure of emissions control systems in cars built in 2001 and

later. But EPA concedes that E15 likely will contribute to the

failure of emissions control systems in some cars built before

2001.

EPA’s E15 waiver thus plainly runs afoul of the statutory

text. EPA’s disregard of the statutory text is open and

notorious – and not much more needs to be said.

EPA does throw out a few arguments to try to get around

the text of the statute. None is persuasive.

First, EPA tries to weave ambiguity out of clarity in the

statutory text. EPA contends that the statute does not

expressly address partial waivers. But as petitioners aptly

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respond in their brief, to suggest “‘that Chevron step two is

implicated any time a statute does not expressly negate the

existence of a claimed administrative power (i.e., when the

statute is not written in ‘thou shalt not’ terms), is both flatly

unfaithful to the principles of administrative law, and refuted

by precedent.’” Petitioners’ Reply Br. 8-9 (quoting API v.

EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995)). There is no

plausible way to read this statute as allowing partial waivers

of the kind granted by EPA here.

EPA also suggests that a plain text reading of the statute

would be absurd – “[c]learly Congress did not mean to require

testing of every vehicle or engine.” EPA Br. 23. But that

argument confuses methods with standards. As to methods,

the statute may allow EPA to test a reasonable sample of

vehicles and extrapolate from those results to conclude that a

new fuel will not cause any vehicles to fail their emissions

tests. But the standard remains that a new fuel cannot cause

any vehicles to fail their emissions tests. Just because EPA

can restrict its testing to a reasonable sample does not mean

that EPA can restrict its waivers to a subset.

EPA then invokes the purpose and legislative history of

the waiver statute. With respect to purpose, there is no single

purpose to this statute. Like many statutes, this one represents

a complex balancing of competing interests and a slew of

compromises. Congress did not pursue one purpose at all

costs. Cf. Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034,

2044 (2012) (“No legislation pursues its purposes at all

costs”) (citation and brackets omitted). Courts respect the

legislative process – and the myriad of interests reflected in

complex legislation – by hewing to the statutory text and not

trying to cherry-pick one purpose from a multitude of

overlapping and sometimes conflicting congressional

purposes. As to the legislative history, to the extent it’s

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relevant, nothing in it suggests that Congress intended to

allow partial waivers. In any event, as the Supreme Court has

repeatedly reminded us, the text of the statute controls. See,

e.g., Mohamad v. Palestinian Authority, 132 S. Ct. 1702,

1709-11 (2012); Milner v. Department of the Navy, 131 S. Ct.

1259, 1266-67 (2011). And the text here is straightforward

and clear.

EPA separately claims that it has traditionally interpreted

the statute as allowing conditional waivers, and that this

partial waiver is like a conditional waiver. Even if the statute

allows conditional waivers, conditional waivers are not the

same as partial waivers. Conditional waivers generally attach

conditions to the fuel, but such waivers do not attach

limitations on the kind of vehicles that can use that fuel,

which is the nature of the waiver at issue here and is precisely

what the statute does not permit.

If Congress wanted to authorize this kind of partial

waiver, it could easily have said so (and going forward, could

still easily do so). After all, the statute elsewhere allows EPA

to partially waive other statutory requirements. See, e.g., 42

U.S.C. § 7545(k)(2)(A) (Administrator may “adjust (or waive

entirely)” certain emissions requirements); 42 U.S.C.

§ 7545(m)(3)(A) (Administrator shall “waive, in whole or in

part,” oxygenated gasoline requirements that would prevent or

interfere with the attainment of certain air quality standards);

42 U.S.C. § 7545(o)(7)(A) (Administrator may waive “in

whole or in part” requirements of renewable fuel mandate).

But Congress didn’t authorize partial waivers in the waiver

provision involved in this case.

***

The food group petitioners and the petroleum group

petitioners each independently have standing to challenge

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EPA’s E15 waiver. On the merits, EPA’s E15 waiver is flatly

contrary to the plain text of the statute. I would grant the

petition for review and vacate EPA’s E15 waiver decision. I

respectfully dissent.