Petition for Writ of Certiorari — National Alternative Fuels Ass'n v. Environmental Protection Agency

6

the actual emissions reductions which would occur

through the use of such an organic manganese

compound.

We will evaluate any data as it becomes available,

but do not expect that any changes to the gasoline

sulfur program would result from information

provided about gasoline additives.

Response to [public] Comments at 32-2.

Had EPA not cursorily dismissed NAFA and actually

evaluated NAFA’s data and proposed fuel additive, it would

have determined that NAFA’s alternative was an acceptable

and reasonable alternative that would achieve desired emission

reductions, a substantial amount of the U.S. gasoline pool

could have been treated with the additive, thus eliminating the

need to modify some refineries, change some fuel distribution

systems, or create an unproven combustion system. '

But EPA did know that NAFA had “standing” to

challenge the rule. Their argument in the Respondent’s brief

that NAFA had failed to establish standing was opportunistic,

to say the least.

The finding of a necessity for sulfur reduction in fuels was

based in large part on EPA’s conclusion that sulfur caused

serious and permanent damage to catalysts, preventing them

from working properly to reduce various emissions. EPA's

conclusions were included in the Notice of Proposed

Rulemaking, in their April 1999-dated Appendix B. Doc. III-

B-01. When EPA promulgated the final rule, it issued a new,

' Tier 2 vehicles, those which would comply with the final rule, did

not yet exist when the final rule was adopted.

7

December 1999-dated Appendix B, which abandoned the data

on which it had relied in the proposed rulemaking. Doc. V-

B-01.

The December 1999 Appendix B and its supporting data

were not published with the Notice of Proposed Rulemaking

in 1999, thus there was never at_j opportunity for public

comment on the Appendix B that was relied on as justification

for the Final Rule. EPA hid the relevant “science” from

the public until after the rule was issued, and what they hid is

the problem that cannot be addressed by a reviewing court,

which is not in position to conduct an evidentiary hearing and

to analyze the shortcomings of the EPA supporting “science” .

NAFA argued in its Petitioner's Brief that “EPA ignored

that NAFA stated its recommended fuel additive would reduce

a broad range of emissions - including HC, CO, toxic, N2),

NOX, particulate and other exhaust emissions. Despite this

and other evidence of standing (and EPA’s substantial

knowledge, which was established in other court pleadings but

ignored by the circuit court), the circuit court found NAFA

had failed to establish its standing - even though it had argued

its fuel additive was prohibited by the rule!

A national rule was justified by EPA, as opposed to

regional rules, in large part because EPA theorized that sulfur

“damage” would be irreversible and that cars driven

anywhere or at any time on high sulfur fuels would have their

emission systems permanently compromised. But, as EPA

admitted, some areas of the country have less “need” for

emissions reductions than others. 65 Fed.Reg. at 6756- 6757

(which was a justification for “phasing in” sulfur reduction

compliance, which resulted in geographic phase-in areas

(“GPA’s”)). If sulfur “damage” was reversible, areas of the

country not needing major emissions reductions or already

8

typically receiving low sulfur fuels would not have needed the

rule and refiners could have produced much more limited

quantities of low sulfur fuels. A national rule was many times

more expensive than a regional or seasonal rule would have

been. NAFA’s recommended fuel additive for oxygenated

fuels would also have substantially reduced the need for low

sulfur fuels - and it would have eliminated the need for a

national rule affecting all gasolines.

REASONS FOR ALLOWING THE WRIT

I. The-court of appeals arbitrarily denied Petitioner

NAFA due process and its First Amendment right to

petition the court for redress for injuries suffered, for

NAFA’s “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 was well aware of the

standing of the petitioner and even though the standing

of the petitioner should be unquestionable.

There is a presumption that parties aggrieved by final

agency actions have a right to judicial review. See 5 U.S.C.

§ 702. The circuit court’s arbitrary dismissal of the Petition

for Review, for Petitioner’s failure to comply with a

“reminder” of a preferred briefing practice provided in a

briefing scheduling order,’ violates the presumption of judicial

review’ and places idiosyncratic court preferences above the

rights of the Petitioner. Judicial review of government action

? See Appendix F.

> See generally Abbott Labs. v. Gardner, 387 U.S. 136, 140

(1967).

9

has long been recognized as inherent in our constitutional

structure:

“*It would excite some surprise if, in a government of

laws and of principic, furnished with a department

whose appropriate duty it is to decide questions of

right, not only between individuals, but between the

government and individuals; a ministerial officer

might, at his discretion, issue this powerful process .

. . leaving to [the claimant] no remedy, no appeal to

the laws of his country, if he should believe the claim

to be unjust. But this anomaly does not exist; this

imputation cannot be cast on the legislature of the

United States.’”

United States v. Nourse, 9 Peters 8, 28-29 (1835)

It would be ironic if the presumption of judicial review

was to be overcome by arbitrary court practices. The

unwritten rule of the circuit also contradicts a long-established

rule of this Court: “the necessary factual predicate [to

establish standing] may not be gleaned from the briefs and

arguments themselves.” Grace v. American Central Ins. Co.,

109 U.S. 278, 284 (1883). The circuit court has no rule

which sets out how parties to agency review proceedings

should establish standing. The federal appellate rules also

establish no procedure to prove standing on appeal.

Procedures for establishing standing on review of an

agency decision should be fair and clearly established and

must be different than procedures in the trial court:

At the district court stage, the facts required to

demonstrate standing should normally appear on the

face of the complaint. At the appellate stage, however,

10

the “complaining party” does not allege any facts but

merely identifies himself as a party to the case in the

district court [or rulemaking] and challenges the

validity of that decision. Only if the appellant’s

standing is challenged must he allege facts sufficient

to convince the court of appeals that he is a proper

party to pursue the appeal.

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 551-

552 ) (1986) Warren, C.J. dissenting (emphasis added).

When standing becomes an issue on appeal, there is no

substitute for allowing a party his due process right to respond

with allegations of “facts sufficient to convince the court of

appeals that he is a proper party to pursue the appeal.” See

Id.

When EPA in its Respondent’s Brief challenged Petitioner

NAFA’s standing, NAFA should have been allowed to submit

affidavits demonstrating its standing. They did so with their

Reply Brief, which was struck by the court and would not

have been considered, anyway. There was no requirement for

establishing Article III standing when submitting comments to

the agency during rulemaking, since that is not an Article Ill

body. The circuit court should adopt a formal requirement -

i.e., a Circuit Rule -for a procedure to establish standing on

appellate review of agency decisions where - as in this case -

there was no district court proceeding. Disqualifying NAFA

for failure to comply with a court reminder - while allowing

no Opportunity to remedy the “failure” - is a total denial of

due process and a denial of meaningful access to the courts.

The latter is a denial of NAFA’s First Amendment right to

petition the government.

11

DENIAL OF RIGHT TO PETITION

The right to petition is one of “the most precious of the

liberties safeguarded by the Bill of Rights,” United Mine

Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967).

“The right of access to the courts is . . . but one aspect of the

right of petition.” California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508, 510 (1972). The right to petition

is not a qualified right, to be strictly construed, but a

fundamental right to be liberally interpreted and strongly

protected: The intent of the framers of the First Amendment

was to create a broader system of rights than that enjoyed by

British subjects: “No purpose in ratifying the Bill of Rights

was clearer than that of securing for the people of the United

States much greater freedom of expression, assembly, and

petition than the people of Great Britain had ever enjoyed.”

Bridges v. California, 314 U.S. 252, 265 (1941).

The circuit court dismissed Petitioner NAFA’s appeal,

finding that NAFA failed to establish standing. But before the

Appeal was dismissed, the panel also unreasonably and

without explanation:

1. Refused to allow NAFA a short extension of time in

which to submit its Petitioner’s Brief, despite no claim of

prejudice from EPA and despite extraordinarily

compelling justification being shown for NAFA’s need for

an extension of time. Appendix E.

2. Refused to allow NAFA leave to file an amended opening

brief and ordered the lodged First Amended Brief be

returned, despite no prejudice being claimed by EPA and

despite extraordinarily compelling justification having

been shown for NAFA’s need for the amended brief.

Appendix D.

12

As a result, the Petitioner’s Brief did not contain what it

should and would have, including more substantial allegations

of allegations of standing and arguments about many

important issues which counsel could not address without

assistance from his client and from his client’s retained

expert, which assistance was not available before the initial

due date for Petitioner’s Brief.

Petitioner NAFA never had a venue or a reasonable

opportunity in which to submit evidence of its standing.

Neither the agency or the circuit court ever held an

evidentiary proceeding to allow NAFA to present evidence of

its standing. EPA challenged Petitioner NAFA’s standing in

its Respondent’s Brief, when the Agency knew full well that

NAPA had standing. ,

A “reminder” note from the clerk (See Appendix F -

reminder buried in a notice of briefing and argument

schedule) that standing should be addressed |not must be

addressed) in the Opening Brief is not sufficient notice to the

Petitioner as to how standing should be addressed in a case

such as this, where Petitioner NAFA challenged the EPA’s

promulgation of a national rule mandating certain fuel

standards, namely, the drastic reduction in the sulfur content

of automotive fuels.

Petitioner NAFA followed the rules for briefing as they

are laid out in the federal appellate rules, namely FRAP 28.

Petitiones NAFA also followed the local rules for briefing in

the circuit, namely Circuit Rule 28. Neither one of those

rules indicates that facts as to standing must or even should be

asserted and established in the opening brief of the Petitioner.

Petitioner NAFA has raised issues of great public

importance in its petition challenging the final rule. The final

13

rule has imposed tens of billions of dollars of unjustified and

unnecessary costs on the American public, contributing to

today’s dramatic increases in gasoline prices. The final rule

has caused significant adverse health consequences to the

public, and the agency was told and understood that these

adverse health consequences would result before the rule was

adopted.

EPA knew from discussions with NAFA that NAFA

sought an exemption from the Final Rule that would save fuel

suppliers and gasoline consumers untold hundreds of millions

(or billions) of dollars. EPA knows these things because they

were told by NAFA during settlement discussions. The

standing of NAFA could (and was with the stricken Reply

Brief) be further established through affidavits or testimony

from NAFA and its members. The EPA knew of NAFA’s

proposed fuel additive because they were funding Bill Orr’s

research on it during the briefing below and they knew that

NAFA believed this fuel additive would reduce ozone absent

the high costs associated with EPA’s mandated fuel sulfur

reductions.

Yet, EPA argued the petition for review should be

dismissed because NAi*A failed to establish its standing. The

circuit court obliged.

NAFA respectfully requests that the matter be remanded

and the appeal be reopened, that NAFA be allowed to submit

its evidence of standing, and that the issues be rebriefed from

the beginning, starting with the Petitioner's Brief.

In order for an association to have Article IIl

representational standing, at least one of its members must

have standing to bring the petition in his or her own right, the

interests the association seeks to protect must he germane to

14

its purpose, and the claim asserted and the relief sought must

not require the individual member or members to participate

directly in the suit. Hunt v. Wash. State Apple Advertising

Comm'n, 432 U.S. 333, 343 (1977).

On reopening this appeal, NAFA can show: (1) NAFA’s

members are gasoline consumers and are adversely affected

by the higher automotive gasoline prices resulting from a

national rule which was unnecessary. As such, they have

standing. See U.S. v. SCRAP, 412 U.S. 669, 690 (1973) (an

identifiable injury, even if it is only a trifling financial cost

which the litigant shares with many others across the nation,

is sufficient to confer standing); (2) that Bill Orr, a member

of NAPA, has property interests (patents) involving the fuel

additives whose commercial value will be destroyed by the

national rule; and that NAFA’s members, including Bill Orr,

will suffer adverse health consequences from the increased

ozone problems resulting from the final rule. All of these

interests are sufficient to establish standing. NAFA can also

show that the rule should be invalidated or the matter should

be remanded for further rulemaking.

In this instance, NAFA considered its standing self-

evident and it believed the EPA could have no doubt as to

NAFA’s standing. In part, this was based on comments

during rulemaking and on previous settlement discussions

with the agency, discussions in which NAFA asked for an

exemption from the Tier 2 iow sulfur requirements imposed

by the Final Rule for a proprietary oxygenated gasoline that

could enable Tier 2 vehicles to meet Tier 2 emissioa standards

without using low sulfur fuels.

15

ARBITRARY DENIAL OF DUE PROCESS

The circuit court arbitrarily refused to allow Petitioner

NAFA to make a supplemental showing as to its standing.

Where petitioners make a supplemcatal but irrefutable

showing of standing, and their supplemental declarations

“make it patently obvious that at least one of their members

will suffer a cognizable “injury in fact” .» a result of the

disputed order,” supplemental declarations should be

considered. See Communities Against Runway Expansion, Inc.

v. Federal Aviation Administration, 355 F.3d 678 (D.C.

Cir.2004). Where the conclusion of standing established in

supplementa! declarations is irrefutable, the Respondent will

not be prejudiced by its inability to respond to the

supplemental declarations. Jd. EPA could claim neither

prejudice or surprise, since it was well aware of NAFA’s (and

its members’) interests.

Standing to sue or defend in a case in federal court (in the

trial court or on appeal) is an aspect of the case or controversy

requirement of Article Il. See Arizonans for Official English

v. Arizona 520 U.S. 43, 64 (1997). Standing may be

evaluated at any stage of a proceeding, including on appeal.

See Id., at 65. The standing required by a person seeking

appellate review is the same as a person initiating a case in the

district court, but the procedures for establishing standing on

appeal must be different. See Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 551-552 ) (1986) Warren, C.J.

dissenting.

When standing becomes an issue on appeal, there is no

substitute for allowing a party to respond with allegations of

“facts sufficient to convince the court of appeals that he is a

proper party to pursue the appeal.”

16

“It is too late in the day and entirely contrary to the spirit

of the Federal Rules of Civil Procedure for decisions on the

merits to be avoided on the basis of [such] mere

technicalities.” See Foman v. Davis, 371 U.S. 178, 181

(1962). “The Federal Rules reject the approach that pleading

is a game of skill in which one misstep by counsel may be

decisive to the outcome and accept the principle that the

purpose of pleading is to facilitate a proper decision on the

merits.” /d. (Internal quotation omitted). There is no reason

to apply any different logic to requirements for pleading

Standing in an appellate court.

The anticipated injuries to NAFA’s members are fairly

traceable to the EPA Final Rule, and these injuries would be

redressed by a decision setting aside that rule or remanding

the matter to the agency for further proceedings. NAFA,

therefore, has standing to challenge the Final Rule. NAFA

should, for similar reasons, have been allowed its requested

extension of time to submit its Petitioner's Brief, or it should

have been allowed to submit its Amended Petitioner's Brief:

“The grant or denial of [an extension of time or] an

opportunity to amend is within the discretion of the District

Court, but outright refusal to grant the leave without any

justifying reason appearing for the denial is not an exercise of

discretion; it is merely abuse of that discretion and

inconsistent with the spirit of the Federal Rules.” /d. The

panel denied an extension of time and denied leave to amend

without any justifying reason being offered.

CONCLUSION

The right to petition for redress of grievances is too

important a right to be denied simply because a party failed to

observe an unwritten rule for establishing standing on appeal.

Mere convenience of the courts cannot become more

17

important than maintaining rzspect for the rights of the

parties. For all the reasons provided above, the writ should

be granted.

Dated this 11th day of August, 2005.

Respectfully submitted,

Paul Grant

6053 S. Quebec Street, # 101

Centennial CO 80111

(303) 771-1908

Counsel for Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2004

[Filed May 13, 2005]

No. 00-1147

National Alternative Fuels Association,

Petitioner

v.

)

)

)

)

)

Environmental Protection Agency and )

Michael O. Leavitt. Administrator, )

Environmental Protection Agency, )

Respondents )

)

)

)

)

)

)

Alliance of Automobile Manufacturers

and Association of International

Automobile Manufacturers, Inc.,

Intervenors.

BEFORE: Edwards, Sentelle, and Roberts, Circuit Judges.

2a

ORDER

Upon consideration of petitioner’s petition for rehearing,

it is ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By:/s/

Michael C. McGrail

Deputy Clerk

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2004

[Filed February 25, 2005]

No. 00-1147

National Alternative Fuels Association,

Petitioner

v.

)

)

)

)

)

Environmental Protection Agency and )

Michael O. Leavitt. Administrator, )

Environmental Protection Agency, )

Respondents )

)

Alliance of Automobile Manufacturers )

and Association of International )

)

)

)

Automobile Manufacturers, Inc.,

Intervenors.

On Petition for Review of an Order

of the Environmental Protection Agency

Before: EDWARDS; SENTELLE,

and ROBERTS, Circuit Judges

4a

JUDGMENT

This cause was considered on a petition for review of an

order of the Environmental Protection Agency and was

briefed by counsel. It is

ORDERED AND ADJUDGED that the petition for

review is hereby dismissed for the reasons set forth in the,

accompanying memorandum.

Pursuant to D.C. Circuit Rule 36, this disposition will not

be published. The Clerk is directed to withhold issuance of

the mandate herein until seven days after resolution of any

timely petition for rehearing or rehearing en banc, See Fed,

R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By:/s/

Michael C. McGrail

Deputy Clerk

Sa

MEMORANDUM

National Alternative Fuels Association (“NAFA”)

petitions for review of a final rule of the Environmental

Protection Agency (“EPA”) establishing vehicle emissions

standards and fuel controls. See Control of Air Pollution

from new Motor Vehicles: Tier 2 Motor Vehicle Emissions

Standards and Gasoline Sulfur Control Requirements, 65 Fed.

Reg. 6698 (Feb. 10, 2000). Because NAFA has failed to

establish its standing to pursue the petition for review, we

dismiss the petition for want of jurisdiction.

In Sierra Club v. EPA, 292 F:3d 895 (D.C, Cir. 2002),

we held:

[A] petitioner whose standing is not self|-jevident should

establish its standing by the submission of its arguments and

any affidavits or other evidence appurtenant theretoat the first

appropriate point in the review proceeding. In some cases

that will be in response to a motion to dismiss for want of

standing; in cases in which no such motion has been made, it

will be with the petitioner’s opening brief- and not ... in reply

to the brief of the respondent agency.

Id. at 900. We reminded the parties of this requirement in our

order establishing the briefing schedule for this case. See

Nat'l Alternative Fuels Ass'n v. EPA; No. 00-1147 (D.C. Cir.

July 9, 2004).

NAFA’s standing is far from self-evident. In its brief,

NAFA describes itself as a group of scientists and concemed

individuals “who are committed to clean and efficient

combustion fuels,” and whose mission is, inter alia, “to focus

intellectually honest scientific attention to the dynamics of our

environment.” Final Petitioner’s Brief at 4. NAFA similarly

6a

identified itself in its comments to EPA during the rulemaking

process. See Joint Appendix at 865.

Under Sierra Club, NAFA was therefore required to

establish its standing in its opening brief, identifying evidence

either in the record or in affidavits or other evidence

appended to its brief. NAFA failed to carry this burden,

proffering no argument or evidence whatsoever relating to its

standing in its opening brief. NAFA loosely, vaguely, and

unimpressively attempted to cure this deficiency in its reply

brief. We granted respondent’s motion to strike that brief,

however, because NAFA improperly attempted to raise

standing arguments for the first time in its reply brief,

impermissibly raised new arguments on the merits challenging

the agency’s rule, and inappropriately offered extra-record

evidence in support of its petition. See Nat'l Alternative Fuels

Ass'n v. EPA, No. 00-1147 (D.C. Cir. Jan. 28, 2005),

reconsideration denied, Nat'l Alternative Fuels Ass'n v. EPA,

No. 00-1147 (D.C. Cir. Feb. 10, 2005).» Accordingly,

NAFA now appears to acknowledge that it haS failed to carry

its burden on standing. See Petitioner's Motion To

Reconsider Order To Strike Reply Brief at 2 (“If the Reply

Brief is disallowed, EPA wi is case by default.”); id. at

6 (“Striking the Reply Brief leaves Petitioner unable to

address standing.”)

Because “the core component of standing is an essential

and unchanging part of the case-or-controversy requirement

of Article Ill,” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992), NAFA’s failure to carry its burden of establishing

standing deprives us of jurisdiction over this petition for

review. We accordingly dismiss the petition.

7a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2004

[Filed January 28, 2005]

No. 00-1147

National Alternative Fuels Association,

Petitioner

v.

)

)

)

)

)

Environmental Protection Agency and )

Michael O. Leavitt. Administrator, )

Environmental Protection Agency, )

Respondents )

)

)

)

)

)

)

Alliance of Automobile Manufacturers

and Association of International

Automobile Manufacturers, Inc.,

Intervenors.

BEFORE: Edwards, Sentelle, and Roberts, Circuit Judges.

8a

ORDER

Upon considration of the Environmental Protection

Agency’s motion to strike petitioner’s reply brief, the

response and the opposition thereto, it is ORDERED that the

motion be granted.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By:/s/

Michael C. McGrail

Deputy Clerk

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2004

[Filed October 7, 2004]

No. 00-1147

National Alternative Fuels Association,

Petitioner

Vv.

)

)

)

)

)

Environmental Protection Agency and )

Michael O. Leavitt. Administrator, )

Environmental Protection Agency, )

Respondents )

)

)

)

)

)

)

Alliance of Automobile Manufacturers

and Association of International

Automobile Manufacturers, Inc.,

Intervenors.

BEFORE: Sentelle and Roberts, Circuit Judges, and

Williams, Senior Circuit Judge.

10a

ORDER

Upon consideration of petitioner’s motion to reconsider

denial of request for extension of time to file petitioner’s

brief, and the lodged first amended brief, it is

ORDERED that the motion be denied. The Clerk is directed

to return to petitioner the first amended brief.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By:/s/

Michael C. McGrail

Deputy Clerk |

lla

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2003

[Filed August 27, 2004]

No. 00-1147

National Alternative Fuels Association,

Petitioner

v.

Environmental Protection Agency and

Michael O. Leavitt. Administrator,

Environmental Protection Agency,

Respondents

Alliance of Automobile Manufacturers

and Association of International

Automobile Manufacturers, Inc.,

Intervenors.

ee ee ee ee ee ee ee ee

Before: Sentelle and Roberts, Circuit Judges

and Williams, Senior Circuit Judge

12a

ORDER

Upon consideration of petitioner’s motion for extension of

time to file brief, and the opposition thereto, it is

ORDERED that the motion be denied. It is

FURTHER ORDERED that the following revised

schedule will now apply:

Petitioner’s Brief September 3, 2004

Respondents’ Brief November 2, 2004

Intervenors’ Brief November 17, 2004

Petitioner’s Reply Brief December 1, 2004

Deferred Appendix December 8, 2004

Final Brief December 22, 2004

Oral Argument February 14, 2004

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

By:/s/

Michael C. McGrail

Deputy Clerk

13a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2003

[Filed July 9, 2004]

No. 00-1147

National Alternative Fuels Association,

Petitioner

Vv.

Environmental Protection Agency and

Christine Todd Whitman. Administrator,

Environmental Protection Agency,

Respondents

ee ee i i ed

ORDER

Upon consideration of respondents’ motion regarding the

briefing schedule, it is

ORDERED that the motion be granted.

This case has been scheduled for oral argument on

Monday, February 14, 2005 at 9:30 AM before Circuit

Judges Sentelle and Roberts and Senior Judge Williams. The

l4a

time and date of oral argument will not change absent further

order of the Court.

It is ORDERED, on the court’s own motion, that a

briefing schedule be established as follows:

Petitioner’s Brief Fri, Aug 27, 2004

Respondent’s Brief Tue, Oct 26, 2004

Intervenor for Respondent’s Brief Wed, Nov 10, 2004

Petitioner’s Reply Brief Wed, Nov 24, 2004

Deferred Appendix Thu, Dec 2, 2004

Final Briefs Thu, Dec 16, 2004

Oral Argument Mon, Feb 14, 2005

Because the briefing schedule is keyed to the date of

argument, the Court will grant requests for extension of time

limits for briefs or transcripts only for extraordinarily

compelling reasons.

Parties are strongly encouraged to hand deliver their briefs

to the clerk’s office on the date due. Filing by mail may delay

the processing of the brief. Additionally, counsel are

reminded that if filing by mail, they must utilize the most

expeditious form of delivery. See Fed.R.App.Proc 25(a).

Briefs should be in final form. All briefs and appendices must

contain the date that the case is scheduled for oral argument

at the top of the cover. See D.C.Cir.Rule 28(a){7).

A further order of the Court will be issued regarding the

allocation of time for argument.

Petitioner must raise issues and arguments in the opening

brief. The Court ordinarily will not consider issues and

arguments raised for the first time in the reply brief.

15a

The court reminds the parties that “a petitioner whose

standing is not self-evident should establish its standing by the

submission of its arguments and any affidavits or other

evidence appurtenant thereto at the first appropriate point in

the review proceeding. In some cases that will be in response

to a motion to dismiss for want of standing; in cases in which

no such motion has been made, it will be with the petitioner’s

opening brief and not... in reply to the brief of the respondent

agency. In either procedural context the petitioner may carry

its burden of production by citing any record evidence

relevant to its claim of standing and, if necessary, appending

to its filing additional affidavits or other evidence sufficient to

support its claim. In its opening brief, the petitioner shouid

also include in the ‘Jurisdictional Statement’ a concise

recitation of the basis upon which it claims standing.” Sierra

Club v. EPA, 292 F.3d 895, 900-01 (D.C.Cir. 2002).

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Cheri Carter

Deputy Clerk

FILED

OCT 1 4 2005

OFFICE OF THE CLERK

No. 05-219

In the Supreme Court of the United States

NATIONAL ALTERNATIVE FUELS’ASSOCIATION,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ANN R. KLEE

General Counsel

JOUN T. HANNON

MICHAEL J. HOROWITZ

Attorneys

Environmental Protection

Agency

Washington, D.C. 20460

PAUL D. CLEMENT

Solicitor General

Counsel of Record

KELLY A. JOHNSON

Acting Assistant Attorney

General

HEATHER E. GANGE

Attorney

Department oy J .stice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly dismissed a

petition for review of a rule promulgated by the Envi-

ronmental Protection Agency when the petitioner failed

to establish its Article II] standing in accordance with

the procedure established by court of appeals precedent

and explicitly set forth in the court’s scheduling order.

(1)

Opinion below

Jurisdiction

Statement

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Coalition for Noncommercial Media v. FCC,

249 F.3d 1005 (D.C. Cir. 2001) ............06.

Conley v. Gibson, 355 U.S. 41 (1957) ..........

Foman v. Davis, 371 U.S. 178 (1962) .........

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

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Pfizer Inc. v. Shalala, 182 F 3d 975 (D.C. Cir.

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Sierra Club v. EPA, 292 F 3d 895 (D.C. Cir.

du di 06h 64h dase Veron Wacled ean ed ohiddad

Constitution and statutes:

U.S. Const.:

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IV

Miscellaneous: Page

Control of Air Pollution from New Motor

Vehicles: Tier 2 Motor Vehicle Emissions

Standards and Gasoline Sulfur Control

Requirements, 65 Fed. Reg. 6698 (2000) .......... 2

In the Supreme Court of the GAnited States

No. 05-219

NATIONAL ALTERNATIVE FUELS ASSOCIATION,

PETITIONER

0.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINION BELOW

The memorandum and judgment of the court of ap-

peals (Pet. App. 3a-6a) are unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 3a-

4a) was entered on February 25, 2005. A petition for

rehearing was denied on May 13, 2005 (Pet. App. la-2a).

The petition for a writ of certiorari was filed on August

11, 2005. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

2

STATEMENT

In 2000, the National Alternative Fuels Association

(NAFA) and others filed petitions for review pursuant

to 42 U.S.C. 7607(b)(1) with the United States Court of

Appeals for the District of Columbia Circuit regarding

various provisions of a rule promulgated by the Environ-

mental Protection Agency (EPA) pursuant to 42 U.S.C.

7521 and 7545, which established limits on the sulfur

content of gasoline.' See Control of Air Pollution from

New Motor Vehicles: Tier 2 Motor Vehicle Emissions

Standards and Gasoline Sulfur Control Requirements,

65 Fed. Reg. 6698 (2000). The petitions were consoli-

dated and stayed during settlement negotiations.

By November 2003, all claims were settled and dis-

missed except for those pursued by NAF A. The court of

appeals lifted the stay on the NAFA claims in November

2003, and issued a scheduling order on July 9, 2004,

which required that petitioner file its merits brief by

August 27, 2004. Pet. App. 13a-l5a. The court sched-

uled the case for argument on February 14, 2005, and

provided that “|bjecause the briefing schedule is keyed

to the date of argument, the Court will grant requests

for extension of time limits for briefs or transcripts only

for extraordinarily compelling reasons.” /d. at 14a. The

court of appeals also included in the text of its order the

following provision:

The court reminds the parties that “a petitioner

whose standing is not self-evident should establish

its standing by the submission of its arguments and

In its petition, NAF A presents substantive arguments about the

rule. Pet. 4-8. The government disputes the petition’s factual and legal

assertions, but does not address them because the merits of the claim

are not before this Court.

3

any affidavits or other evidence appurtenant thereto

at the first appropriate point in the review proceed-

ings. In some cases that will be in response to a mo-

tion to dismiss for want of standing; in cases in which

no such motion has been made, it will be with the peti-

tioner’s opening brief and not . . . in reply to the

brief of the respondent agency. In either procedural

context the petitioner may carry its burden of pro-

duction by citing any record evidence relevant to its

claim of standing and, if necessary, appending to its

filing additional affidavits or other evidence suffi-

cient to support its claim. In its opening brief, the

petitioner should also include in the ‘Jurisdictional

Statement’ a concise recitation of the basis upon

which it claims standing.” Sierra Club v. EPA, 292

F.3d 895, 900-01 (D.C. Cir. 2002).

Id. at 15a.

On August 14, 2004, NAFA sought a five-week exten-

sion of its briefing deadline to allow its counsel more

time for “assistance from his client and from his client’s

retained expert.” Pet. 12. The court granted a one-

week extension, making petitioner’s brief due Septem-

ber 3, 2004. Pet. App. lla-12a.

NAFA filed its brief on September 3, 2004, describ-

ing itself as “a group of scientists and concerned individ-

uals ‘who are committed to clean and efficient combus-

tion fuels,” and who seek “to focus intellectually honest

scientific attention to the dynamics of our environment,”

Pet. App. 5a (quoting Final Pet. Br. at 4). NAFA had

similarly characterized itself in public comments submit-

4

ted to EPA that were part of the administrative record

for the disputed rule. /d. at 5a-Ga.

NAFA filed a motion to file an amended brief, but

the motion, and a subsequent motion for reconsidera-

tion, were denied. Pet. App. 9a-10a. The government

filed its brief on November 2, 2004, and asserted, inter

alia, that NAFA had failed to establish standing in ac-

cordance with court procedure. Pet. 10. NAFA filed a

reply brief, but it was stricken after briefing on a motion

by the government to strike “because NAF A improperly

attempted to raise standing arguments for the first time

in its reply brief, impermissibly raised new arguments

on the merits challenging the agency's rule, and inap-

propriately offered extra-record evidence in support of

its petition.” Pet. App. 6a; see id. at 7a-8a. NAFA's

subsequent motion for reconsideration was denied. /d.

at 9a-10a.

On February 25, 2005, the court of appeals issued its

memorandum and judgment dismissing NAF A’s petition

for review. Pet. App. 3a-6a. The court explained that the

petition was dismissed “for want of jurisdiction” because

“NAFA has failed to establish i.s standing to pursue the

petition for review” as required by circuit court prece-

dent. /d. at 5a. The court of appeals found that peti-

tioner’s standing was “far from self-evident,” and that it

“proffer[ed] no argument or evidence whatsoever relat-

ing to its standing in its opening brief,” and then at-

tempted to “loosely, vaguely, and unimpressively * * *

cure this deficiency in its reply brief.” /bid.

* The government disputes the allegations made by NAF A regard.

ing extra-record settlement discussions (Pet. 13), but does not address

the allegations in this response because they were not properly before

the court of appeals, and are not relevant to the issue before this Court

regarding the sufficiency of NAF A’s standing allegations.

al

oF

Petitioner filed motions for panel rehearing and re-

hearing en banc, which were denied on May 13, 2005.

Pet. App. la-2a.

ARGUMENT

The court of appeals correctly ruled, based on the

standing allegations in petitioner's opening brief below,

that petitioner and its individual members do not have

Article II] standing to challenge EPA’s rule. The court

of appeals also correctly struck petitioner's reply briefs,

which “loosely, vaguely, and unimpressively” failed to

demonstrate Article III standing, and which violated the

D.C. Circuit's local rules, its briefing order in this case,

and established precedent. See Pet. App. 6a. Those

rulings are correct, and do not conflict with any decision

of this Court or any other court of appeals. Further re-

view is therefore not warranted.

1. Petitioner contends (Pet. 12) that the court of ap-

peals improperly dismissed its petition because peti-

tioner was not given sufficient notice of the court's pro-

cedure by the inclusion of a “‘reminder’ note from the

clerk * * * buried in a notice of briefing and argument

schedule.” That argument is incorrect, and does not

merit review by this Court.

Petitioner received ample notice of the court's re-

quired procedure. The so-called “reminder note” was

set forth in the text of the court’s scheduling order, con-

tained a citation to the court's decision in Sierra Club v.

EPA, 292 F.3d 895 (D.C. Cir. 2002), and included a

word-for-word quotation from that case detailing the

standard procedure to be followed by a petitioner seek-

ing review of an agency decision. See Pet. App. 15a; see

also Pet. App. 5a.

In Sierra Club, the court of appeals determined that

a standard procedure for establishing standing was war-

ranted because standing is “an essential and unchanging

part of the case-or-controversy requirement of Article

III,” meaning that the absence of standing deprives a

federal court of jurisdiction to hear the case. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). In

contrast to cases that originate in the district court, pe-

titions for review of agency actions originate in an ad-

ministrative forum that is “not subject to Article III of

the Constitution of the United States.” Sierra Club, 292

F.3d at 899 (quoting Pfizer Inc. v. Shalala, 182 F.3d 975,

980 (D.C. Cir. 1999). Therefore, even though “the peti-

tioner ordinarily will have participated in the proceed-

ings before the agency,” the parties were not required

to establish Article III standing at that stage of the pro-

ceeding, meaning that it is not until the petitioner seeks

judicial review in the court of appeals that “the constitu-

tional requirement that it have standing kicks in, * * *

the same, of course, as it would * * * if such review

were conducted in the first instance by the district

court.” /bid.

The party that “invok/es] federal jurisdiction bears

the burden of establishing” its standing “in the same

way as any other matter on which the plaintiff bears the

burden of proof, i.c., with the manner and degree of evi-

dence required at the successive stages of the litiga-

tion.” Lujan, 504 U.S. at 561. When a party seeks re-

view of agency action before the court of appeals, it is

“asking the court of appeals for a final judgment on the

merits,” so “it must support each element of its claim to

standing ‘by affidavit or other evidence’” sufficient to

justify a judgment on the merits. Sierra Club, 292 F.3d

at 899 (quoting Lujan, 504 U.S. at 561).

7

Accordingly, the court of appeals established a “fair

and orderly process” that would provide “arguments for

and against standing”—“the same tried and true ad-

versarial procedure we use for the presentation of argu-

ments on the merits.” Sierra Club, 292 F.3d at 900-901.

As quoted in the scheduling order in this case, the court

in Sierra Club announced the following procedure to be

utilized in all future cases:

Henceforth, therefore, a petitioner whose standing is

not selfevident should establish its standing by the

submission of its arguments and any affidavits or

other evidence appurtenant thereto at the first ap-

propriate point in the review proceeding. In some

cases that will be in response to a motion to dismiss

for want of standing; in cases in which no such mo-

tion has been made, it will be with the petitioner's

opening brief—and not, as in this case, in reply to the

brief of the respondent agency. In either procedural

context the petitioner may carry its burden of pro-

duction by citing any record evidence relevant to its

claim of standing and, if necessary, appending to its

filing additional affidavits or other evidence suffi-

cient to support its claim. In its opening brief, the

petitioner should also include in the “Jurisdictional

Statement” a concise recitation of the basis upon

which it claims standing.

Ibid.

Petitioner was thus provided ample notice of its obli-

gation to establish its standing and the appropriate

mechanism for doing so. Petitioner's claim that it did

not receive adequate notice is therefore without merit.

And, in any event, petitioner points to nothing that