The Engine Products Group (EPG), a consortium of trade associations representing engine manufacturers, has fired the latest salvo in the fight over renewable fuels. EPG is asking the Supreme Court to review a D.C. Circuit Court of Appeals decision that dismissed EPG’s petition challenging EPA’s decision to grant a partial waiver allowing E15 fuel (gasoline containing 15% ethanol) to be sold for use in vehicles manufactured after 2001. Should the Supreme Court decide to take up the case, it will be faced with ruling on the procedural matter of "standing," not the merits of whether EPA should have allowed a waiver for E15 fuel.
The controversy started in 2009 when the Renewable Fuel’s Association (RFA) petitioned EPA for a waiver for its members to begin marketing E15 as transportation fuel. Under the Clean Air Act, fuel manufacturers must receive approval before selling a new type fuel to the general public. EPA granted RFA’s petition on the condition that the fuel be used only in vehicles manufactured after 2001. Several trade associations, ranging from engine manufacturers to ag groups filed suit challenging EPA’s decision to grant RFA’s petition. The D.C. Circuit Court of Appeals ultimately dismissed the industry group’s challenge to the petition on the procedural grounds, namely standing.
Standing to sue is a constitutionally-enshrined requirement that must be established before a federal court can hear a case. To achieve standing, a plaintiff must prove that (1) it has suffered an injury, (2) the injury can be reasonably traced back to the actions of the defendant, and (3) the injuries suffered will be redressed if the plaintiff prevails in the suit. In other words, a plaintiff has to have some skin in the game. For instance, a mechanic in Maine cannot sue a restaurant in California for playing Taylor Swift songs too loudly just because he read a news article discussing this restaurant’s penchant for Taylor Swift songs – he must actually hear the Taylor Swift songs himself.
Federal courts allow trade associations to sue on behalf of their members, but these groups are also subject to standing requirements. For a trade association to have standing, (1) it must have at least one member that could sue in his own right, (2) the suit must be related to the interests of the association, and (3) the particular claim asserted in the suit does not require a member to participate as an individual.
In the underlying suit, Grocery Manufacturer’s Ass’n v. EPA, the case was dismissed when a 2-1 panel held that none of the petitioners could establish that at least one of its members could sue EPA over the E15 waiver in their own right. The court held that any injury alleged by engine and fuel groups was too speculative and relied on too many "what-ifs." The court also dismissed the ag and food groups’ petitions on the basis that their concerns about rising food costs were not relevant to the decision over whether to approve a new fuel type.
The Grocery Manufacturer’s Ass’n decision obviously frustrated anti-ethanol groups because the case was decided on procedural matters and did not get to the heart of the issue. I am not sure that anti-ethanol groups will get much satisfaction out of the Supreme Court either. First, the Supreme Court grants only a fraction of the petitions that it receives. Second, the issue in question, trade association standing, has already received much attention in the Supreme Court. Finally, even if the Supreme Court decides in favor of EPG, EPG would still have to go back to the D.C. Circuit and prevail on the merits.
I will follow up on any developments in this case.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.