Standing Against E15

Among the petitions for certiorari listed for today’s Supreme Court conference are three (1, 2, 3) challenging a misguided standing ruling by the U.S. Court of Appeals for the D.C. Circuit. In Grocery Manufacturers Association v. EPA a divided panel of the D.C. Circuit held that a range of trade associations challenging the Environmental Protection Agency’s decision to allow broader use of E15 – a blend of gasoline containing 15 percent ethanol — lacked standing to challenge the rule. The standing ruling was dispositive of the case on the merits because the EPA’s decision was contrary to the plain text of the relevant statute.

The three judges on the panel in GMA v. EPA — Sentelle, Tatel, and Kavanaugh — disagreed on how to resolve the case. Judge Sentelle, who announced the judgment of the court, held that no petitioners had standing to challenge the EPA’s decision. Although the EPA had not pressed the standing issue, Judge Sentelle concluded that prudential standing is jurisdictional and could not be waived. Judge Tatel, though agreeing with the dissent on some points, concurred on prudential standing grounds. While Judge Tatel does not believe prudential standing is jurisdictional, he concluded the panel was constrained by controlling circuit precedent concluding otherwise. Judge Kavanaugh, in dissent, argued that multiple groups had Article III standing, that at least one group had prudential standing and, in any event, that prudential standing is not jurisdictional and the issue had been waived by the EPA. For what it’s worth, I think Judge Kavanaugh has the better of the argument here, though I think a fair argument can be made that the panel was bound to find prudential standing jurisdictional.

GMA v. EPA would appear to be cert-worthy. There is a circuit split on the prudential standing question and the Supreme Court has already taken one case for next term that touches on this question. GMA would enable the Court to address it more directly. Further, this case would enable the Court to clarify when parties that are not directly regulated but are nonetheless affected by regulatory or deregulatory actions have standing. This has been an issue in several recent cases of some significance (including the GHG regulation litigation) and deserves some clarification. We’ll soon see if four or more justices on the Court see this case the same way.

A final note: Though not particularly relevant for certiorari purposes, the economic and environmental impacts of this case are significant. With its decision on E15 the EPA (once again) put the interests of farmers and ethanol producers ahead of environmental protection, as it has time and time again. That’s bad enough, but in this case the EPA’s actions were also illegal.