In a string of recent decisions, the U.S. Court of Appeals for the District of Columbia Circuit appears to be shifting away from the long-standing general presumption that standing is self-evident for target entities of a regulatory program — Coalition for Responsible Regulation, Inc. v. EPA, Grocery Manufacturers Ass’n v. EPA, Alliance of Automobile Manufacturers v. EPA, and Delta Construction Company v. EPA.
In Coalition for Responsible Regulation v. EPA, the D.C. Circuit held industry had “failed to establish that the [Greenhouse Gas] Rules caused them ‘injury in fact,’ [or that] injury … could be redressed by the Rules’ vacatur.” The court found that although “Industry Petitioners contend[ed] that they are injured because they are subject to regulation of [GHGs],” they lacked standing because several aspects of “the … Rules … actually mitigate Petitioners’ purported injuries.”
In Grocery Manufacturers and Alliance of Automobile Manufacturers, EPA decisions concerning the ethanol regulatory program were challenged by a multitude of trade groups – automakers, oil companies, food suppliers – each claiming its members were harmed by the regulations. In twin decisions separated by over two years, the D.C. Circuit held none of this broad universe of industry petitioners had standing to challenge EPA’s actions.
In Delta Construction Company v. EPA, the D.C. Circuit held all petitioners lacked standing to seek remand of EPA’s Greenhouse Gas (“GHG”) emission standards for heavy-duty trucks. Some Petitioners had attacked the Rule because the emission standards would drive up the price of the trucks they purchased; another Petitioner alleged the rule made its products—modified diesel engines to run on vegetable oil —“economically infeasible.” The Court found the Purchaser Petitioners’ standing failed on both the causation and redressibility prongs of the standing test. The Manufacturer Petitioner was determined not to fall within the “zone of interests” intended to be protected by the Clean Air Act.
These four D. C. Circuit rulings all found technical defects in the industry petitioners’ standing. They may signal a lasting shift away from the basic assumption that a regulated industry has standing to challenge regulations aimed at its activities.
Given this new, strict scrutiny of industry standing, practitioners would be well advised not to take for granted the standing of their clients. In the docketing statement for a regulatory challenge, industry counsel should substantively focus on the “brief statement of the basis for the … petitioner’s claim of standing” and reference materials in “the administrative record supporting the claim of standing.”