Prologue — National Alternative Fuels Ass'n v. Environmental Protection Agency

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- Supreme Court, U.S.

Ch) FILED

057219 AUG 11 2003

No. ____ OFFICE OF THE CLERIC

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Bn the

Supreme Court of the United States

NATIONAL ALTERNATIVE FUELS ASSOCIATION,

Petitioner,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY and

Michael O. Leavitt, Administrator, Environmental

Protection Agency,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

PauL GRANT

Counsel of Record

6053 SouTH Quepec Street, #101

CENTENNIAL, CO 80111

(303) 771-1908

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

QUESTIONS PRESENTED

Whether a person aggrieved by an agency rule can be

denied due process and their First Amendment right to

petition the court for redress for injuries suffered, for

failure to comply with an unwritten rule of the circuit

which requires a petitioner to establish their Article III

standing in the opening brief, even though the agency

being challenged is well aware of the standing of the

petitioner and even though the standing of the petitioner

is unquestionable.

f

ii

List of Parties and Corporate Disclosure Statement

Petitioner - NAFA is a not-for-profit association, not a

corporation.

Respondent - Environmental Protection Agency

Intervenors - Not shown in the caption are: Alliance of

Automobile Manufacturers and Association of International

Manufacturers, Inc., who did participate as Intervenors in the

case below - despite the fact that their only claim to standing

was that they relied upon the rule and they would be injured

if the rule was changed - i.e., they claimed a vested interest

in maintaining the existing state of the law.

ili

TABLE OF CONTENTS

Page

Questions Presented For Review .................1

List of Parties and Corporate Disclosure Statement... . ii

Pere eee Tee eT v

| PR EOE TUTE ORE Pe Oe ere l

PE EKER 96 UES CODES CPi a eee ee l

Constitutional and Statutory Provisions ........... |

ae Gale GNU 5. io > A we bso pee Oa ee coe 2

Reasons for Allowing the Writ ................. 8

]. The court of appeals arbitrarily denied

Petitioner due process and its First

Amendment right to petition the court for

redress for injuries suffered, for failure to

comply with an unwritten rule of the circuit

which requires a petitioner to establish their

Article II] standing in the opening brief, even

though the agency being challenged is well

aware of the standing of the petitioner and

even though the standing of the petitioner

should be unquestionable ................ 8

CII 6 os. 558 SER ss 5 cK ole CER DD eh i6

pt Ee Tee ee ean tia eer ae la

Appendix A

May 13, 2005 Order denying Petition for

SS Cake we Rhee d ¢ tia dials ob Sie eet la

Appendix B

Judgment and Memorandum of the District of

Columbia Circuit Court of Appeals entered on

PO Be DO ee KES oe be ew eR Me ae 3a

Appendix C

CCST OF SORUETY ZB, BOOS. 6 chet eee os Ta

Appendix D

SIU OE OE 5 BOs fae os hawk cw eke 9a

Appendix E

CONE OG FEL 21, DOPE eV ie dips aod eae lla

Appendix F

Order and Briefing Schedule of July 9, 2004. .... 13a

v

TABLE OF AUTHORITIES

Cases 3 Page

Arizonans for Official English v. Arizona,

ee ae REPEE bo 3 viach's Aes Wlewed b0 tes 15

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986)

Warren, C.J. dissenting (emphasis added) ... 10, 15

Bridges v. California,

ee ee rk ey ee ee 11

California Motor Transport Co. v. Trucking Unlimited,

Pe WP ee CREE > bind 0,08 CeK a edad eiet ll

Communities Against Runway Expansion, Inc. v.

Federal Aviation Administration,

Pe ag | rr rere rd 15

Foman v. Davis,

Fk ie Eee CE 6 6 hte ee oe Weak ee eae 15

Grace v. American Central Ins. Co.,

Be RD 7. ERS eS ee eee 9

Hunt v. Wash. State Apple Advertising Comm'n,

Oe SE EP CEITTD 4 bo we ek Oe eee eee. 13

United States v. Nourse,

es a A CED os a rn es cee eee 3 ems 7)

United Mine Workers v. Illinois Bar Ass'n,

er Oe EEUU es eet week intesves 11

vi

U.S. v. SCRAP,

GRb es GE ee ea Resa ennai eae 14

C gaia 5 1 Rul

United States Constitution, AmendmentI .... . 8, 10, 11

Faldess es PE GED obra Saas s oe ene 1,2,8

l

OPINIONS BELOW

The Judgment and accompanying Memorandum of the

District of Columbia Circuit Court of Appeals was entered

February 25, 2005, and a copy of the Judgment and

Memorandum is attached as Appendix B.

JURISDICTION

The court of appeals dismissed NAFA’a petition for

review of the Final Rule in its Judgment of February 25, 2005

- for alleged failure to establish standing. Appendix B. The

court of appeals denied the petition for rehearing or rehearing

en banc on May 13, 2005. Appendix A. This petition

follows. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

The Solicitor General has been provided a copy of this

petition as required by Rule 29.4(a), as has the Environmental

Protection agency.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., Amend. I provides:

Congress shall make no law respecting an establishment

of religion or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble and to petition the

government for a redress of grievances.

5 U.S.C. § 702 provides:

Right of review. 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. An action in a court of the

United States seeking relief other than money damages and

Stating a claim that an agency or an officer or employee

thereof acted or failed to act in an official capacity or under

color of legal authority shall not be dismissed nor relief

therein be denied on the ground that it is against the United

States or that the United States is an indispensable party. The

United States may be named as a defendant in any such

action, and a judgment or decree may be entered against the

United States: Provided, That any mandatory or injunctive

decree shall specify the Federal officer or officers (by name

or by title), and their successors in office, personally

responsible for compliance. Nothing herein (1) affects other

limitations on judicial review or the power or duty of the

court to dismiss any action or deny relief on any other

appropriate legal or equitable ground; or (2) confers authority

to grant relief if any other statute that grants consent to suit

expressly or impliedly forbids the relief which is sought.

STATEMENT OF THE CASE

Petitioner NAFA filed its petition for agency review

pursuant to 5 U.S.C. § 702 and FRAP 1S(a). The circuit

court had jurisdiction and venue was correct to hear this case

pursuant to 5 U.S.C. §§ 702-704. Petitioner NAFA’s timely

petition for review was filed on April 7, 2000, within 60 days

of the publication of the final rule, which rule was published

in the Federal Register at 65 Fed. Reg. 6698 on February 10,

2000.

3

This case involves a petition to review the Environmental

Protection Agency’s 2000 final rule establishing new emission

standards (“Tier 2 standards”) for passenger cars, light

trucks, and larger passenger vehicles - re: Control of Air

Pollution From New Motor Vehicles: Tier 2 Motor Vehicle

Emissions Standards and Gasoline Sulfur Control

Requirements, 65 Fed. Reg. 6698 (2000); issued by the

Environmental Protection Agency on February 10, 2000.

This final rule imposed new limitations requiring refiners to

reduce the amount of sulfur in gasoline nationwide. Petitioner

NAFA has challenged the requirements for sulfur reduction

as being arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; contrary to

constitutional right, power, privilege, or immunity; in excess

of statutory jurisdiction, authority, or limitations; without

observance of procedure required by law; unsupported by

substantial evidence; or unwarranted by the facts.

In public comments, Petitioner NAFA proposed the use of

alternative technologies which EPA arbitrarily declined to

consider. This alternative technology would satisfy the

emission reduction goals of EPA without the multibillion

dollar national sulfur removal required by EPA. American

automobile gasoline consumers would reap the financial

benefit of much lower gasoline prices on fuels utilizing the

alternative technology.

The circuit court dismissed Petitioner NAFA’s petition for

review, finding that NAFA had failed to establish standing.

See Order and Memorandum at 1, Appendix B. Before the

court dismissed the case, the court had also denied Petitioner

a timely Motion for Extension of Time to submit the

Petitioner’s Brief, even though Petitioner had shown

extraordinary justification - a person who would have

provided vital and essential assistance to counsel in preparing

4

the Petitioner’s Brief - Petitioner’s expert, Melvin Ingalls -

was unavailable to provide assistance within the original

briefing schedule. See Appendix E, Order of August 27,

2004. EPA had opposed the extension of time - without

claiming any prejudice - and the extension was then arbitrarily

The Petitioner’s Reply Brief (which contained further

allegations as to standing) was later struck by the court, and

not considered, again without any reasoning or explanation

from the court. See Appendix C, Order of January 28, 2005.

On September 23, 1999, Petitioner NAFA submitted its

comments in response to the Notice of Proposed Rule

Making. NAFA commented that it disagreed with EPA’s

position that sulfur must be reduced in order to achieve

proposed Tier 2 NOx requirements. NAFA pointed out that

the final rule would have the deleterious effect of significantly

reducing coolant aerosols in the atmosphere.

NAFA commented that EPA should consider alternative

technology (EPA knew NAFA (through Bill Orr, its

Chairman) was associated with research on this technology

because EPA was funding the research) which would allow

proposed NOx emission standards to be met without the

exorbitantly expensive need to remove or reduce sulfur in all

gasoline nationwide. NAFA described an additive fuel

technology for oxygenated fuels where the additive contained

already-approved (under § 211 of the Clean Air Act)

ingredients. This additive fuel technology enhanced catalyst

activity and prevented phosphorous poisoning of catalysts.

The resulting enhanced combustion product would reduce a

broad range of emissions, including HC, CO, toxic, N20,

NOx, particulate, and other exhaust emissions. NAFA

5

showed EPA test results and scientific literature backing up its

claims. EPA responded as follows:

COMMENT C: One commenter provided

significant comment and attachments related to the use

of fuel additives for achieving the desired emission

reductions. Specifically, the commenter provided

information on the use of oxygenate plus an organic

manganese compound. The commenter argues that this

approach shows the capability to achieve emission

reductions using existing catalytic technology and

existing fuel sulfur levels.

Commenter attaches various data and information

related to this approach. The commenter recommends

that EPA delay the Tier 2 rulemaking until complete

tests can be conducted to determine the viability of

this approach. The commenter also notes that the

approach would be far less costly because the refiucry

modifications would not be required and the existing

catalytic technology could continue to be used.

RESPONSE: We did not propose alternate means

to getting the emissions reductions we identified in our

proposal because of the clear connection we made

between gasoline sulfur levels and _ catalyst

performance. Our purpose in controlling gasoline

sulfur is to enable and ensure the overall emissions

performance of Tier 2 vehicles, not simply to get

NOX emissions. We do not believe that the

recommended approach would get the same emissions

benefits as gasoline sulfur control because it would

still allow the emissions performance of Tier 2

catalysts to be degraded by exposure to unreasonably

high sulfur levels and because we are uncertain about