Delta Construction Company, In, et al v. EPA

Filing

OPINION filed [1549043] PER CURIAM OPINION (Pages: 19) [11-1428, 11-1441, 12-1427]

USCA Case #11-1428

Document #1549043

Filed: 04/24/2015

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2015

Decided April 24, 2015
No. 11-1428

DELTA CONSTRUCTION COMPANY, INC., ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

Consolidated with 11-1441, 12-1427

On Petitions for Review of Final Agency Actions of the
Environmental Protection Agency and the Department of
Transportation

No. 13-1076
CALIFORNIA CONSTRUCTION TRUCKING ASSOCIATION, INC.,
ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

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On Petition for Review of Final Agency Action of the United
States Environmental Protection Agency

Claude D. Convisser argued the cause for petitioner Plant
Oil Powered Diesel Fuel Systems, Inc. With him on the final
joint opening brief were Theodore Hadzi-Antich and M. Reed
Hopper.
Claude D. Convisser was on the final reply brief for
petitioner Plant Oil Powered Diesel Fuel Systems, Inc.
Theodore Hadzi-Antich argued the cause for petitioners
Delta Construction Company, Inc., et al., in case nos. 11-1428
and 13-1076. With him on the briefs was M. Reed Hopper.
Michele L. Walter and Daniel R. Dertke, Attorneys, U.S.
Department of Justice, argued the causes for respondent.
With them on the brief were Sam Hirsch, Acting Assistant
Attorney General, Stuart F. Delery, Assistant Attorney
General, Mark B. Stern, and H. Thomas Bryon, III, Attorneys,
Steven E. Silverman, Attorney, U.S. Environmental Protection
Agency, O. Kevin Vincent, Chief Counsel, National Highway
Traffic Safety Administration, and Timothy H. Goodman,
Acting Assistant Chief Counsel. Eric G. Hostetler, Attorney,
U.S. Department of Justice, entered an appearance.
Sean H. Donahue, Vickie Patton, Graham McCahan,
Peter Zalzal, and Benjamin Longstreth were on the brief for
movant respondent-intervenors Environmental Defense Fund,
et al., in support of respondents.
Kamala D. Harris, Attorney General, Office of the
Attorney General for the State of California, Robert W. Byrne,

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Senior Assistant Attorney General, Annadel A. Almendras,
Supervising Deputy Attorney General, M. Elaine
Meckenstock, Deputy Attorney General, Thomas J. Miller,
Attorney General, Office of the Attorney General for the State
of Iowa, David R. Sheridan, Assistant Attorney General, Lisa
Madigan, Attorney General, Office of the Attorney General
for the State of Illinois, Matthew J. Dunn and Gerald T. Karr,
Assistant Attorneys General, Eric T. Schneiderman, Attorney
General, Office of the Attorney General for the State of New
York, Barbara D. Underwood, Solicitor General, Michael J.
Myers, Assistant Attorney General, Ellen F. Rosenblum,
Attorney General, Office of the Attorney General for the State
of Oregon, Paul A. Garrahan, Acting Attorney-in-Charge,
Douglas F. Gansler, Attorney General at the time the brief
was filed, Office of the Attorney General for the State of
Maryland, Roberta James, Assistant Attorney General,
Martha Coakley, Attorney General at the time the brief was
filed, Office of the Attorney General for the Commonwealth
of Massachusetts, Carol Iancu, Assistant Attorney General,
William H. Sorrell, Attorney General, Office of the Attorney
General for the State of Vermont, Thea J. Schwartz, Assistant
Attorney General, Robert W. Ferguson, Attorney General,
Office of the Attorney General for the State of Washington,
Leslie R. Seffern, Assistant Attorney General, and Michael A.
Cardozo, Christopher Gene King, and Carrie Noteboom, were
on the brief for movant-intervenor States of California, et al.
Before: TATEL, Circuit Judge, EDWARDS, Senior Circuit
Judge, and GINSBURG, Senior Circuit Judge.
Opinion filed for the Court PER CURIAM.
PER CURIAM: Acting pursuant to their respective statutory
mandates, the Environmental Protection Agency (“EPA”) and
the National Highway Traffic Safety Administration

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(“NHTSA”) issued coordinated rules governing the
greenhouse gas emissions and fuel economy of cars and
trucks. In Coalition for Responsible Regulation, Inc. v. EPA,
684 F.3d 102 (D.C. Cir. 2012), rev’d in part on other grounds
sub nom. Utility Air Regulatory Group v. EPA, 134 S. Ct.
2427 (2014), we upheld EPA’s car emission standards. Now,
a group of petitioners collaterally attacks these standards on
procedural grounds, and an overlapping group challenges
EPA’s truck standards based on the same legal theory.
Another petitioner challenges both agencies’ regulations
concerning trucks as arbitrary and capricious. As we explain
below, however, we cannot reach the merits of any of these
petitions.
I.
Section 202(a) of the Clean Air Act (“CAA”) requires
EPA to regulate air pollutants, including greenhouse gases,
emitted “from any class or classes of new motor vehicles or
new motor vehicle engines, which in [the EPA
Administrator’s] judgment cause, or contribute to, air
pollution which may reasonably be anticipated to endanger
public health or welfare.” 42 U.S.C. § 7521(a)(1);
Massachusetts v. EPA, 549 U.S. 497, 532 (2007)
(“[G]reenhouse gases fit well within the Clean Air Act’s
capacious definition of ‘air pollutant.’”). EPA triggered this
obligation in 2009 when it found that greenhouse gases
“endanger both the public health and the public welfare of
current and future generations” and that “emissions of these
greenhouse gases from new motor vehicles and new motor
vehicle engines contribute to the greenhouse gas air pollution
that endangers public health and welfare.” See Endangerment
and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act, Final Rule, 74
Fed. Reg. 66,496 (Dec. 15, 2009) (“Endangerment Finding”).

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But “[b]ecause no available technologies reduce tailpipe
[greenhouse gas] emissions per gallon of fuel combusted, any
rule that limits tailpipe [greenhouse gas] emissions is
effectively identical to a rule that limits fuel consumption.” 76
Fed. Reg. 57,124–25. EPA’s mandate therefore intersects
with NHTSA’s responsibility to promulgate average fuel
efficiency standards for automobile manufacturers. 49 U.S.C.
§ 32902; 49 C.F.R. § 1.95. Given this, the two agencies
worked together to generate functionally equivalent standards
for greenhouse gas emissions and fuel economy. See Press
Release, The White House, President Obama Announces
National Fuel Efficiency Policy (May 19, 2009) (announcing
cooperation between EPA and NHTSA); Presidential
Memorandum, Improving Energy Security, American
Competitiveness and Job Creation, and Environmental
Protection Through a Transformation of our Nation’s Fleet of
Cars and Trucks (May 21, 2010) (directing EPA and NHTSA
to work together on truck standards).
The first binding product of this collaboration was a joint
Final Rule the agencies issued in 2010 for light-duty
vehicles—or, translated from agency speak to English, cars.
See Light-Duty Vehicle Greenhouse Gas Emission Standards
and Corporate Average Fuel Economy Standards, Final Rule,
75 Fed. Reg. 25,324 (May 7, 2010) (“Car Rule”). While there
are slight differences between the EPA greenhouse gas
emission standards and the NHTSA fuel economy standards,
see id. at 25,330 (explaining that only EPA’s standard takes
account of hydrofluorocarbon leakage from air-conditioning
systems), “[t]hey represent a harmonized approach that will
allow industry to build a single national fleet that will satisfy
both” requirements, id.
Various state and industry groups challenged the Car
Rule, along with the Endangerment Finding and related

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regulations. This court upheld the rules against all challenges,
see Coalition for Responsible Regulation, 684 F.3d 102, and
the Supreme Court denied certiorari in the portion of the case
challenging the Car Rule, see Utility Air Regulatory Group v.
EPA, 134 S. Ct. 2427, 2438 (2014).
Meanwhile, in 2011, EPA and NHTSA issued another
joint Final Rule, this one regulating the greenhouse gas
emissions and fuel economy of heavy-duty vehicles, i.e.,
trucks. See Greenhouse Gas Emissions Standards and Fuel
Efficiency Standards for Medium- and Heavy-Duty Engines
and Vehicles, Final Rule, 76 Fed. Reg. 57,106 (Sept. 15,
2011) (“Truck Rule”). As with the Car Rule, the agencies’
standards differ slightly, see id. at 57,106 (explaining that
“[c]ertain rules are exclusive to the EPA program” and that
the EPA program phases in earlier), but again, “[c]ompliance
by a truck manufacturer with the NHTSA fuel economy rule
assures compliance with the EPA rule, and vice versa,” id. at
57,125.
This case combines multiple challenges to the Truck
Rule, as well as a collateral attack on the Car Rule. Two
overlapping groups, which we shall refer to as the “California
Petitioners,” comprising businesses, associations, and
individuals located in that state, bring related challenges: one
to EPA’s portion of the Car Rule and the other to its portion
of the Truck Rule. These petitioners claim that, as purchasers
of new vehicles, they are harmed by the increased up-front
costs attributable to the greenhouse gas emission standards.
Another petitioner, Plant Oil Powered Diesel (“POP
Diesel”), is a business that promotes the use of vegetable oil
in place of traditional diesel fuel. It makes after-market
modifications to diesel engines enabling them to run on
vegetable oil, and hopes to bring a proprietary engine to

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market. POP Diesel also imports and sells jatropha oil, a
vegetable fuel squeezed from the fruit of a poisonous tree.
Claiming that the Truck Rule makes its products
economically infeasible, POP Diesel sought reconsideration
of both the EPA and NHTSA components of that rule. EPA
denied POP Diesel’s petition for reconsideration, while
NHTSA treated the filing as a petition for rulemaking, which
it rejected. POP Diesel now appeals from the agencies’
denials of its petition.
In order to obtain judicial review of these claims,
however, the petitioners must establish that we have
jurisdiction over their petitions. To do that, they must
demonstrate that they have standing under Article III of the
Constitution, see Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992), and that their petitions meet all other
jurisdictional requirements, see, e.g., 49 U.S.C. § 32909(b)
(setting deadline for petitions for review). Even if petitioners
can establish jurisdiction, we will not reach the merits of their
claims unless they also seek to vindicate rights within “the
zone of interests to be protected or regulated by the statute.”
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 132 S. Ct. 2199, 2210 (2012) (citation omitted).
This opinion proceeds in two parts. Part II considers the
California Petitioners’ Article III standing, while Part III
examines whether this court has original jurisdiction over
POP Diesel’s claim against NHTSA, and whether its
challenge to EPA’s portion of the Truck Rule must be
dismissed for lack of standing or because it does not fall
within the zone of interests protected by the provision of the
Clean Air Act governing emissions standards for motor
vehicles.

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II.
The California Petitioners argue that “EPA neglected to
comply with a nondiscretionary statutory duty,” to provide its
greenhouse gas emission standards to the Science Advisory
Board—an expert body charged with providing scientific
advice to EPA—prior to issuing them. Petitioners’ Truck Rule
Br. at 2; see also Petitioners’ Car Rule Br. at 5 (same). Under
the controlling statute, if EPA provides “any proposed criteria
document, standard, limitation, or regulation under the Clean
Air Act . . . to any other Federal agency for formal review and
comment,” it must “make available to the Board such
proposed” document. 42 U.S.C. § 4365(c)(1). According to
the California Petitioners, EPA triggered this provision by
submitting its standards to the Office of Management and
Budget pursuant to Executive Order 12866, but it failed to
comply with the statutory requirement that it “make [the
standard] available” to the Board.
According to EPA, however, the California Petitioners
lack Article III standing because they have failed to show that
“(1) [they] ha[ve] suffered (or [are] about to suffer) an injuryin-fact, that (2) was caused by the conduct of the respondent
and (3) would be redressed by the relief sought from the
court.” Crete Carrier Corp. v. EPA, 363 F.3d 490, 492 (D.C.
Cir. 2004) (citing Lujan, 504 U.S. at 560–61 (1992)).
Specifically, EPA argues, petitioners have failed to
demonstrate an injury-in-fact because their allegations are too
vague or otherwise deficient, and they have failed to
demonstrate causation and redressability because even were
we to grant their petitions, they would still face the same
higher prices for vehicles.
We have no need to consider whether the California
Petitioners have properly alleged an injury-in-fact because we

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agree with EPA that they have shown neither causation nor
redressability. Recall that EPA and NHTSA collaborated on
both the Car Rule and the Truck Rule, and that, for both rules,
the two agencies’ requirements are substantially identical. See
supra at 6 (“compliance by a truck manufacturer with the
NHTSA fuel economy rule assures compliance with the EPA
rule, and vice versa”); supra at 5 (the Car Rule “will allow
industry to build a single national fleet that will satisfy both”
requirements). Because the Science Advisory Board’s statute
applies only to EPA, however, the California Petitioners
attack only EPA’s portions of the two rules. But “both
[agencies’ standards], jointly, are the source of the benefits
and costs of the National Program.” Car Rule at 25,343.
Therefore, even were we to vacate the EPA standards, the
NHTSA standards would still increase the price of vehicles.
Accordingly, the California Petitioners cannot demonstrate
either that EPA’s standards cause their purported injury or
that a favorable decision by this court would redress it. See
Massachusetts v. EPA, 549 U.S. at 543 (“As is often the case,
the questions of causation and redressability overlap.”);
Branton v. FCC, 993 F.2d 906, 910 (D.C. Cir. 1993) (“The
two requirements tend to merge . . . in a case such as this
where the requested relief consists solely of the reversal or
discontinuation of the challenged action.”).
Our decision in Crete Carrier Corp. v. EPA is instructive.
There, certain trucking companies claimed they had standing
to challenge a new EPA pollution standard because it
increased the price of the truck engines they purchased. The
engine manufacturers, however, were also subject to consent
decrees that independently caused the same price hike.
“Because of the Consent Decrees,” we concluded, “the
Trucking Companies have not established the necessary
causal connection between the . . . Standard and the increased
costs they will incur.” Crete Carrier Corp., 363 F.3d at 493.

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Likewise here. Because a separate action—NHTSA’s
standards—independently causes the same alleged harm as
the challenged action, the California Petitioners are unable to
establish the “necessary causal connection” between the EPA
standards and their purported injury.
True, the preambles to both the Car Rule and the Truck
Rule identify slight differences between the two agencies’
requirements, see supra at 5, 6, and it is theoretically possible
that the EPA-specific portions cause a distinct injury that
could be redressed by this court. But the California Petitioners
make no such argument. Indeed, they argue neither that
EPA’s requirements independently cause a price increase nor
that if EPA alone rescinded its standards vehicle
manufacturers would sell cheaper products, and it is
petitioners who bear the burden of establishing standing.
Lujan, 504 U.S. at 561 (“The party invoking federal
jurisdiction bears the burden of establishing these elements.”).
What the California Petitioners do argue is that “the joint
rule[s] create[] an indivisible ‘National Program,’” meaning
that “the fuel economy standards cannot be bifurcated from
the greenhouse gas emission standards.” Petitioners’ Car Rule
Reply Br. at 8; see also Petitioners’ Truck Rule Reply Br. at 9
(same). But nothing in NHTSA’s standards even suggests that
they are dependent on EPA’s standards—something
government counsel confirmed at oral argument. See Truck
Rule Oral Arg. Rec. at 36:20.
Finally, at oral argument California Petitioners’ counsel
cited Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), and Larson v.
Valente, 456 U.S. 228 (1982), for the idea that an injury is
redressable for standing purposes so long as a favorable
decision would remove one of its multiple regulatory causes,

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even if the decision would fail to actually redress the injury.
But far from expressing such an exotic quirk of redressability
doctrine, these cases stand for the more pedestrian proposition
that “a plaintiff satisfies the redressability requirement when
he shows that a favorable decision will relieve a discrete
injury to himself” and “need not show that a favorable
decision will relieve his every injury.” Larson, 456 U.S. at
243 n.15. In both cases the plaintiffs challenged regulatory
burdens that caused distinct harms. See Village of Arlington
Heights, 429 U.S. at 261 (allegation of discriminatory zoning
redressable even though non-profit developer “would still
have to secure financing, qualify for federal subsidies, and
carry through with construction” (footnote omitted)); Larson,
456 U.S. at 243 (“[A] declaration that [the statute’s] fifty per
cent rule is unconstitutional would put the State to the task of
demonstrating that the [plaintiff] is not a religious
organization within the meaning of the Act—and such a task
is surely more burdensome than that of demonstrating that the
[plaintiff’s] proportion of nonmember contributions exceeds
fifty per cent. Thus appellees will be given substantial and
meaningful relief by a favorable decision of this Court.”). By
contrast, the California Petitioners have failed to identify a
discrete injury that a favorable decision by this court would
remedy. They therefore lack standing because “[t]he Art[icle]
III judicial power exists only to redress or otherwise to protect
against injury to the complaining party.” Warth v. Seldin, 422
U.S. 490, 499 (1975).
III.
POP Diesel argues that the Truck Rule is arbitrary and
capricious for three reasons. First, it complains that the Truck
Rule measures the greenhouse gas emissions of fuels based on
how much carbon dioxide is produced from vehicle tailpipes,
ignoring greenhouse gas impacts created earlier in a fuel’s

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lifecycle. Petitioners’ Truck Rule Br. 42–46; see also id. at
10–15. Second, it argues that it was unreasonable for EPA to
conclude that the Truck Rule did not need additional
incentives for biofuels because they are sufficiently promoted
through the Renewable Fuel Standards Program, 42 U.S.C.
§ 7545(o). Id. at 47–48. Finally, POP Diesel argues that EPA
failed to consider whether the Truck Rule’s fuel efficiency
improvements will lead to greater economic activity that
causes a net increase in greenhouse gas emissions. Id. at 49–
53. We consider, in turn, POP Diesel’s challenges to the rules
issued by NHTSA and EPA. With respect to each challenge,
we conclude that the petitions for review must be dismissed.
A.
This court lacks original jurisdiction over POP Diesel’s
claim against NHTSA. “Unless a statute provides otherwise,
persons seeking review of agency action go first to district
court rather than to a court of appeals.” International
Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C.
Cir. 1994). Petitions for review of agency action may not be
pursued in the court of appeals in the first instance unless a
direct-review statute specifically gives the court of appeals
subject-matter jurisdiction to directly review agency action.
POP Diesel argues that this court has original jurisdiction
under 49 U.S.C. § 32909(a)(1), which permits any “person
that may be adversely affected by a regulation prescribed in
carrying out any of sections 32901–32904 or 32908 of this
title”—i.e., NHTSA’s fuel economy responsibilities—to
“apply for review of the regulation by filing a petition for
review in the United States Court of Appeals for the District
of Columbia Circuit.” Under NHTSA’s regulations, however,
a petition for reconsideration of a rule must be received within
45 days of the publication of the rule in the Federal Register.

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49 C.F.R. § 553.35(a). Petitions received after that deadline
are considered to be petitions for rulemaking under 49 C.F.R.
§ 552. Id. POP Diesel submitted its petition 59 days after the
publication of the Truck Rule, so NHTSA treated it as a
petition for a new rulemaking and denied it. 49 U.S.C.
§ 32909(a)(1) does not permit direct review of a petition for
rulemaking in the courts of appeals.
The rationale supporting this court’s decision in Public
Citizen, Inc. v. National Highway Traffic Safety
Administration, 489 F.3d 1279 (D.C. Cir. 2007), is controlling
here. In Public Citizen, we examined the scope of 49 U.S.C.
§ 30161, which relates to NHTSA safety standards, and held
that the statute did not authorize the court of appeals to
entertain in the first instance challenges regarding petitions
for rulemaking. Id. at 1287. Section 30161(a) authorizes
direct appellate review of petitions filed by persons
“adversely affected by an order prescribing a motor vehicle
safety standard.” The Public Citizen court observed that “to
‘prescribe’ is to order or adopt something as a governing
rule.” 489 F.3d at 1287 (citing 12 OXFORD ENGLISH
DICTIONARY 390 (2d ed. 1989)). Setting a standard, the court
explained, is “prescribing.” Id. Declining to amend a standard,
however, is not “prescribing.” Id.
49 U.S.C. § 32909 is significantly the same as 49 U.S.C.
§ 30161 with respect to what petitions for review may be
heard by the court of appeals in the first instance. Section
32909 says:
(a) Filing and venue.—(1) A person that may be
adversely affected by a regulation prescribed in carrying
out any of sections 32901–32904 or 32908 of this title
may apply for review of the regulation by filing a petition
for review in the United States Court of Appeals for the

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District of Columbia Circuit or in the court of appeals of
the United States for the circuit in which the person
resides or has its principal place of business.
(2) A person adversely affected by a regulation
prescribed under section 32912(c)(1) of this title may
apply for review of the regulation by filing a petition for
review in the court of appeals of the United States for the
circuit in which the person resides or has its principal
place of business.
This provision and the statutory provisions to which it refers
relate only to generally applicable rules, standards, and
procedures “prescribed” by the Secretary. See, e.g., id.
§ 32901(c)(1) (“The Secretary shall prescribe by regulation
the minimum driving range . . . .”); id § 32902(a) (“[T]he
Secretary of Transportation shall prescribe by regulation
average fuel economy standards . . . .”); id. § 32904(b)(3)(C)
(“The Secretary of Transportation shall prescribe reasonable
procedures for elections . . . .”). These provisions confirm
what a straightforward reading of Section 32909 suggests:
that NHTSA’s denial of a petition for rulemaking is not the
same as prescribing a regulation under the provisions
enumerated in the direct review statute.
Because “the plain terms of the statute dictate that
judicial review of NHTSA’s denial of a petition for
rulemaking must begin in district courts—not in courts of
appeals,” we must dismiss this portion of POP Diesel’s suit.
Public Citizen, 489 F.3d at 1287.

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B.
This court has original jurisdiction over POP Diesel’s
challenge to EPA’s portion of the Truck Rule under 42 U.S.C.
§ 7607(b)(1). However, EPA raises two other threshold
objections to POP Diesel’s petition for review. The agency
first argues that POP Diesel lacks Article III standing because
the company “fails to establish that it would sell more of its
diesel engine conversion product or its fuel if the standards
were amended.” Respondents’ Truck Rule Br. 26. We
disagree.
The law of the circuit is clear that “any one competing for
a governmental benefit . . . [may] assert competitor standing
when the Government takes a step that benefits his rival and
therefore injures him economically.” Sherley v. Sebelius, 610
F.3d 69, 72 (D.C. Cir. 2010). As an importer and seller of
jatropha oil fuel, POP Diesel is injured by EPA regulations
that incentivize other renewable fuels like electricity sold by
its competitors.
We confronted a similar situation in White Stallion
Energy Center, LLC v. EPA, 748 F.3d 1222, 1256 (D.C. Cir.
2014), cert. granted on other grounds sub nom. Michigan v.
EPA, 135 S. Ct. 702 (2014). In that case, Julander, a natural
gas supplier, challenged emissions standards promulgated
under 42 U.S.C. § 7412 on the grounds that EPA should have
required electric utilities to switch from coal to natural gas. Id.
We held that the injury, causation, and redressability of
Julander’s standing were “self-evident, insofar as the Final
Rule does not require [utilities] to switch to natural gas, to the
detriment of Julander’s stated interests, and on remand EPA
could require fuel switching.” Id. (citation omitted). The same
logic applies here: the Truck Rule incentivizes other
renewable fuels to the detriment of POP Diesel’s interests. If

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POP Diesel were to prevail on the merits, EPA could give
redress by amending the regulation to incentivize vegetable
oil fuel instead. In sum, POP Diesel has Article III standing.
EPA’s second contention is that POP Diesel does not fall
within the zone of interests protected by 42 U.S.C. § 7521, the
provision of the Clean Air Act governing emissions standards
for motor vehicles. Respondents’ Truck Rule Br. 27–28. Here
we agree, and this argument is fatal to POP Diesel’s claim.
The purpose of the zone of interests inquiry is to
determine whether POP Diesel “falls within the class of
plaintiffs whom Congress has authorized to sue” under
Section 7521. Lexmark International, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1387 (2014). “In other
words, we ask whether [POP Diesel] has a cause of action
under the statute.” Id. In suits under the Administrative
Procedure Act, the zone of interests test is “not ‘especially
demanding.’” Id. at 1389 (quoting Match-E-Be-Nash-SheWish, 132 S. Ct. at 2210). However, “the breadth of the zone
of interests varies according to the provisions of law at issue.”
Bennett v. Spear, 520 U.S. 154, 163 (1997). “[W]hat comes
within the zone of interests of a statute for purposes of
obtaining judicial review of administrative action under the
‘generous review provisions’ of the APA may not do so for
other purposes.” Id. (quoting Clarke v. Securities Industry
Ass’n, 479 U.S. 388, 400 n.16 (1987)).
In the context of emission standards, “an industry group’s
interest in increasing the regulatory burden on others falls
outside the zone of interests protected by the Clean Air Act.”
Association of Battery Recyclers v. EPA, 716 F.3d 667, 674
(D.C. Cir. 2013) (internal quotation marks omitted). This
holds true even where corporations’ “pecuniary interests in
increasing demand for their products [are] aligned with the

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goals of the CAA.” White Stallion, 748 F.3d at 1257. As we
have explained,
Whenever Congress pursues some goal, it is inevitable
that firms capable of advancing that goal may
benefit. . . . But in the absence of either some explicit
evidence of an intent to benefit such firms, or some
reason to believe that such firms would be unusually
suitable champions of Congress’s ultimate goals, no one
would suppose them to [be within the zone of interests]
to attack regulatory laxity.
Id. (quoting Hazardous Waste Treatment Council v. EPA, 861
F.2d 277, 283 (D.C. Cir. 1988)). “[J]udicial intervention may
defeat statutory goals if it proceeds at the behest of interests
that coincide only accidentally with those goals, and . . . openended emissions standards are particularly susceptible to such
manipulation.” Id. at 1257–58 (citation and internal quotation
marks omitted).
As mentioned above, the facts of this case are particularly
close to those of White Stallion, and the outcome of that case
is controlling here. The White Stallion court held that Julander
was outside the zone of interests protected by the statute
because it sought to profit from increasing the regulatory
burden on other parties. Just like Julander, POP Diesel is a
purveyor of clean fuel challenging EPA’s decision not to
incentivize regulated entities to purchase its product. And as
with Julander, the mere fact that POP Diesel’s financial
interests currently appear to align with the goals of the CAA
is not sufficient to allow it to challenge EPA’s emissions
standards.
POP Diesel attempts to distinguish White Stallion by
arguing that it (unlike Julander) is an “unusually suitable

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champion” of the statute’s purpose because of the “special
suitability of its products for . . . reducing overall fossil fuel
consumption and greenhouse gas emissions.” POP Diesel’s
Reply Br. 13. However, we have repeatedly held that “green”
corporate interests do not necessarily fall within the zone of
interests of environmental statutes. In the context of the
Resource Conservation and Recovery Act, this court refused
to entertain a petition from the Environmental Technology
Council (an association of hazardous waste treatment and
disposal firms), challenging lax regulation of used and
contaminated oil. Hazardous Waste, 861 F.2d at 282–85. We
did so despite the fact that the Council’s articles of
incorporation declared that one of its purposes is “[t]o
promote the protection of the environment.” Id. at 281. The
Council has also sued in this court under the CAA. Cement
Kiln Recycling Coalition v. EPA, 255 F.3d 855, 870–71 (D.C.
Cir. 2001). Representing firms with the “best performing”
pollution control systems, the Council challenged EPA’s
creation of weaker alternate emissions standards that
advantaged their competitors. Id. at 870. The court again held
that the Council fell outside the zone of interests of the
statute. Id. at 871.
Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir. 2002), is
the rare case in which we have permitted a competitor suit
challenging EPA’s emission regulations. However, it is the
proverbial exception that proves the rule. Ethyl sought to
require transparency in EPA’s emissions test procedures. The
company’s interest was in information that would “help it
develop and improve its products with an eye to conformity to
emissions needs” and “secur[e] EPA approval for its own fuel
additive products.” Id. at 1147–48. Because Ethyl sought to
improve its ability to comply with EPA fuel regulations,
rather than to acquire business by increasing the burden of
emissions regulations on other firms, its interests were

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“congruent with those of the statute.” Id. at 1148; see also
White Stallion, 748 F.3d at 1258. Merely seeking to boost
sales of a particularly green product, however, is not
sufficient. POP Diesel is therefore not a proper petitioner and
its claim must be dismissed.
CONCLUSION
For the reasons set forth above, the petitions for review
are dismissed.
So ordered.

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