Chamber of Commerce of the Uni v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2011 Decided April 29, 2011
No. 09-1237
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA
AND NATIONAL AUTOMOBILE DEALERS ASSOCIATION,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
INTERVENORS
On Petition for Review of an Order
of the Environmental Protection Agency
Paul D. Clement argued the cause for petitioners. On the
briefs were Robin S. Conrad, Andrew D. Koblenz, Douglas I.
Greenhaus, Matthew G. Paulson, Alexandra M. Walsh, and
Adam J. White. Jeffrey A. Lamken and Amar D. Sarwal entered
appearances.
Damien M. Schiff was on the brief for amicus curiae Pacific
Legal Foundation in support of petitioners.
Norman L. Rave Jr., Attorney, U.S. Department of Justice,
2
argued the cause for respondent. With him on the brief was
Michael Horowitz, Attorney, U.S. Environmental Protection
Agency. John C. Cruden, Assistant Attorney General, U.S.
Department of Justice, entered an appearance.
Edmund G. Brown, Jr., Attorney General, Office of the
Attorney General for the State of California, Kathleen A.
Kenealy, Senior Assistant Attorney General, Marc N. Melnick,
Deputy Attorney General; Andrew M. Cuomo, Attorney General,
Office of the Attorney General for the State of New York,
Michael J. Myers, Assistant Attorney General; Gary K. King,
Attorney General, Office of the Attorney General for the State
of New Mexico; Joseph R. Biden III, Attorney General, Office
of the Attorney General for the State of Delaware, Valerie M.
Satterfield, Deputy Attorney General; Richard Blumenthal,
Attorney General, Office of the Attorney General for the State
of Connecticut, Kimberly P. Massicotte and Matthew I. Levine,
Assistant Attorneys General; Lisa Madigan, Attorney General,
Office of the Attorney General for the State of Illinois, Gerald
T. Karr, Assistant Attorney General; Martha Coakley, Attorney
General, Office of the Attorney General for the Commonwealth
of Massachusetts, William L. Pardee and Carol Iancu, Assistant
Attorneys General; Thomas J. Miller, Attorney General, Office
of the Attorney General for the State of Iowa, David R.
Sheridan, Assistant Attorney General; Roberta James, Assistant
Attorney General, Office of the Attorney General for the State
of Maryland; Lori Swanson, Attorney General, Office of the
Attorney General for the State of Minnesota, Jocelyn F. Olson,
Assistant Attorney General; Janet T. Mills, Attorney General,
Office of the Attorney General for the State of Maine, Gerald D.
Reid, Assistant Attorney General; John Kroger, Attorney
General, Office of the Attorney General for the State of Oregon,
Paul Logan, Assistant Attorney General; William H. Sorrell,
Attorney General, Office of the Attorney General for the State
of Vermont, Thea J. Schwartz, Assistant Attorney General;
3
Kevin Auerbacher, Jon Martin, and Jung Kim, Deputy Attorneys
General, Office of the Attorney General for the State of New
Jersey; Patrick C. Lynch, Attorney General, Office of the
Attorney General for the State of Rhode Island, Gregory S.
Schultz, Special Assistant Attorney General; Robert M.
McKenna, Attorney General, Office of the Attorney General for
the State of Washington, Leslie R. Seffern, Assistant Attorney
General; Susan Shinkman, Chief Counsel, Commonwealth of
Pennsylvania Department of Environmental Protection, Robert
A. Reiley and Kristen M. Furlan, Assistant Counsel; Kurt R.
Wiese, Barbara B. Baird, David Doniger, Joanne Spalding,
Sean H. Donahue, Vickie Patton, and Pamela Campos were on
the intervenors’ brief in support of respondent. Frederick D.
Augenstern I, Assistant Attorney General, Office of the Attorney
General for the Commonwealth of Massachusetts, David G.
Bookbinder, Beverly M. Conerton, Assistant Attorney General,
Office of the Attorney General for the State of Minnesota, and
Stephen R. Farris, Assistant Attorney General, Office of the
Attorney General for the State of New Mexico, entered
appearances.
Deborah A. Sivas and Robb W. Kapla were on the brief for
amici curiae Former U.S. EPA Administrators William K.
Reilly and Russell E. Train in support of respondent.
John W. Busterud was on the joint brief for amici curiae
Pacific Gas and Electric Corporation and Sempra Energy. Mark
D. Patrizio entered an appearance.
Stephen F. Hinchman and Matthew F. Pawa were on the
brief for amici curiae Car Dealers Adam D. Lee and Charles E.
Frank in support of respondent.
Helen Kang was on the brief for amici curiae Climate
Scientists in support of respondent.
4
Before: HENDERSON, GARLAND, and BROWN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The Chamber of Commerce and
the National Automobile Dealers Association petition for review
of a decision by the Environmental Protection Agency (EPA)
granting California a waiver from federal preemption under the
Clean Air Act. The waiver allows California to implement its
own regulations requiring automobile manufacturers to reduce
fleet-average greenhouse gas emissions from new motor
vehicles sold in the state. Because we lack jurisdiction to decide
this case at this time in a suit brought by these petitioners, we
dismiss the petition for review without reaching its merits.
I
The Clean Air Act (CAA) generally bars states from
adopting their own emissions standards for new motor vehicles,
leaving such regulations to federal control. See 42 U.S.C.
§ 7543(a) (“No State . . . shall adopt or attempt to enforce any
standard relating to the control of emissions from new motor
vehicles or new motor vehicle engines”). Section 7543(b)(1)
provides the following exception to federal preemption:
(b)(1) The Administrator [of EPA] shall, after notice
and opportunity for public hearing, waive application
of this section to any State which has adopted
standards . . . for the control of emissions from new
motor vehicles or new motor vehicle engines prior to
March 30, 1966, if the State determines that the State
standards will be, in the aggregate, at least as
protective of public health and welfare as applicable
5
Federal standards. No such waiver shall be granted if
the Administrator finds that –
(A) the determination of the State is arbitrary and
capricious,
(B) such State does not need such State standards
to meet compelling and extraordinary conditions,
or
(C) such State standards and accompanying
enforcement procedures are not consistent with
section 7521(a) of this title.
42 U.S.C. § 7543(b)(1). As California is the only state that had
adopted emissions standards prior to March 30, 1966, it is the
only state eligible for a waiver of federal preemption under this
provision. See Ford Motor Co. v. EPA, 606 F.2d 1293, 1296
(D.C. Cir. 1979). In 1977, however, Congress amended the
CAA to permit other states to adopt and enforce standards
“identical to the California standards for which a waiver has
been granted,” without obtaining a separate waiver, provided
that both California and the other state have given manufacturers
a two-year lead time. 42 U.S.C. § 7507. States that adopt
California’s motor vehicle emissions program are referred to as
“Section 177 states,” after the section of the CAA that
authorizes them to do so. See Ford Motor Co., 606 F.2d at
1298, 1301 n.54.
In September 2004, the California Air Resources Board
(CARB) adopted regulations setting fleet-average greenhouse
gas1 emissions standards for new motor vehicles beginning in
Model Year (MY) 2009. See CAL. CODE REG. tit. 13 § 1961.1.
Under those regulations, manufacturers receive credits for
1
Greenhouse gases include carbon dioxide, methane, nitrous
oxides, and hydroflourocarbons. EPA Br. 5.
6
meeting the standards before MY 2009, for exceeding the
standards in subsequent model years, and for selling alternative
fuel vehicles. These credits may be banked for later use or sold
to another manufacturer. Id. § 1961.1(b). If a manufacturer
fails to comply in a particular model year, it begins to accrue
debits. A manufacturer may incur a debit in any model year
without penalty so long as it makes up the debit within five
years, either by generating credits or purchasing credits from
another manufacturer. Id. The standards become stricter as the
model years progress. Id. § 1961.1(a).
On December 21, 2005, CARB asked EPA to waive federal
preemption of California’s greenhouse gas emissions standards
pursuant to § 7543(b)(1). EPA denied the request. Its decision,
published in March 2008, stated that “California does not need
its motor vehicle [greenhouse gas] standards to meet compelling
and extraordinary conditions,” as § 7543(b)(1)(B) requires.
Decision Denying a Waiver of Clean Air Act Preemption, 73
Fed. Reg. 12,156, 12,159 (Mar. 6, 2008). The agency
recognized that it had previously interpreted § 7543(b)(1)(B) to
ask only whether California continued to need its own motor
vehicle program as a whole to address compelling and
extraordinary conditions. Id. at 12,159-61. But it concluded
that § 7543(b)(1)(B) was subject to multiple interpretations, and
when applied to emissions standards designed to address global
as opposed to local or regional air pollution problems, it was
best understood to require that EPA assess California’s need for
the newly proposed standards by themselves. Id. California
could not satisfy this requirement, EPA reasoned, because
California-specific conditions are not “the fundamental causal
factors for the air pollution problem of elevated concentrations
of greenhouse gases,” and, alternatively, because the effects of
global climate change in California “are not sufficiently
different from conditions in the nation as a whole to justify
separate state standards.” Id. at 12,162, 12,168. Thereafter,
7
California, several other states, and several environmental
groups petitioned this court for review.2
On January 21, 2009, CARB asked EPA to reconsider its
previous denial. EPA agreed to reconsider and, on July 8, 2009,
after a public hearing and comment period, issued a decision
granting the waiver. Decision Granting a Waiver of Clean Air
Act Preemption, 74 Fed. Reg. 32,744, 32,783 (July 8, 2009).
EPA rejected its 2008 interpretation of § 7543(b)(1)(B),
returning to its earlier view and finding that California’s request
satisfied the provision because California still needed its own
emissions program “as a whole.” Id. at 32,762-63. In the
alternative, EPA concluded that a waiver was warranted even if
it were to examine California’s greenhouse gas standards
separately under the tests applied in its 2008 decision. The
agency found that those standards were intended at least in part
to address a local or regional problem because of the “logical
link between the local air pollution problem of ozone and
. . . [greenhouse gases].” Id. at 32,763. It also determined that
waiver opponents had not met their burden of demonstrating that
“the impacts of global climate change in California are either not
significant enough or are not different enough from the rest of
the country to be considered compelling and extraordinary
conditions.” Id. at 32,765. Since EPA’s waiver decision, at
least fourteen states -- including the State of Maryland -- have
adopted California’s greenhouse gas emissions standards
pursuant to Section 177.3 On September 8, 2009, the Chamber
2
Those petitions were held in abeyance and subsequently
dismissed on the parties’ joint motion after EPA reversed its denial
and granted the waiver, as discussed below. See California v. EPA,
No. 08-1178 (D.C. Cir. filed May 5, 2008).
3
See ARIZ. ADMIN. CODE § R18-2-1805 (2011); CONN. AGENCIES
REGS. § 22a-174-36b (2011); D.C. CODE § 50-731 (2011); FLA.
8
of Commerce and the National Automobile Dealers Association
(NADA) petitioned for judicial review of EPA’s waiver
decision.
On April 1, 2010, EPA and the National Highway
Transportation Safety Administration (NHTSA) jointly issued
a national program of greenhouse gas emissions and fuel
economy standards for MYs 2012 to 2016. Light-Duty Vehicle
Greenhouse Gas Emission Standards and Corporate Average
Fuel Economy Standards (Final Rule), 75 Fed. Reg. 25,324(May 7, 2010). The product of an agreement between the
federal government, California, and the major automobile
manufacturers, the new rules make it possible for automobile
manufacturers to sell a “single light-duty national fleet” that
satisfies the standards of the EPA, NHTSA, California, and the
Section 177 states. Id. at 25,324-28. Pursuant to that
agreement, California amended its regulations to deem
compliance with the national standards compliance with its own
for MYs 2012-16. See CAL. CODE REGS. tit. 13
§ 1961.1(a)(1)(A)(ii). The California-specific standards remain
in place until MY 2012, although California adopted “pooling
rules” that allow manufacturers to achieve compliance for MYs
2009-11 based on the “pooled” average emissions for the fleets
of vehicles sold in California and the Section 177 states. See id.
§ 1961.1(a)(1)(A)(i). Major automobile manufacturers and their
trade associations, in turn, made commitments not to contest the
ADMIN. CODE ANN. r. 62-285.400 (2011); 06-096-127 ME. CODE R.
§ 4 (2011); MD. CODE REGS. 26.11.34.02 (2011); 310 MASS. CODE
REGS. 7.40(2)(a)(7) (2011); N.J. ADMIN. CODE § 7:27-29.13 (2011);
N.M. CODE R. § 20.2.88.102 (2011); N.Y. COMP. CODES R. & REGS.
tit. 6, § 218-8.3 (2011); OR. ADMIN. R. 340-257-0050 (2011); 25 PA.
CODE. § 126.411 (2011); R.I. ADMIN. CODE 25-4-37:37.2 (2011); 16-
3-100 VT. ADMIN. CODE. § 5-1106 (2011); WASH. ADMIN. CODE.
§ 173-423-070 (2011).
9
national standards for MYs 2012-16, not to contest the grant of
a waiver of CAA preemption to California for its greenhouse gas
emissions regulations, and to stay and then dismiss all then-
pending litigation challenging those regulations. See 75 Fed.
Reg. at 25,328.
Although the automobile manufacturers agreed not to
contest EPA’s grant of a waiver to California, the Chamber of
Commerce and NADA did not join in that agreement. On behalf
of their automobile dealer members, the Chamber and NADA
bring this challenge to EPA’s decision to grant California a
preemption waiver under § 7543(b)(1). They argue that
§ 7543(b)(1)(B) unambiguously requires that EPA assess
California’s need for the particular standards it presents for a
waiver, not for its state-specific emissions program as a whole.
Even if there were any ambiguity, the petitioners argue, it was
unreasonable for EPA to waive preemption for standards related
to a global environmental problem based on California’s
continuing need to address state-specific conditions. Finally, the
petitioners reject EPA’s alternative conclusion that the
California greenhouse gas standards are proper even under its
2008 test. In their view, California’s standards will have no
identifiable effect on increased global temperatures, and any
effects of climate change in California are not sufficiently
different from those experienced elsewhere in the country to
justify California-specific regulations.
Before we may reach the merits of these arguments, we
must assure ourselves that Article III of the Constitution grants
us jurisdiction to decide this case. See Steel Co. v. Citizens for
a Better Env’t., 523 U.S. 83 (1998). Because we conclude that
we lack jurisdiction, we dismiss the petition for review.
10
II
Because Article III limits federal judicial jurisdiction to
cases and controversies, see U.S. CONST. art. III, § 2, federal
courts are without authority “to render advisory opinions [or] ‘to
decide questions that cannot affect the rights of litigants in the
case before them,’” Preiser v. Newkirk, 422 U.S. 395, 401(1975)
(citation omitted). The doctrines of standing and mootness
reflect and enforce those limitations. See Davis v. FEC, 554
U.S. 724, 732-33 (2008); Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). “[S]tanding
is assessed as of the time a suit commences,” Del Monte Fresh
Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir.
2009), and it ensures that a litigant “allege[s] such a personal
stake in the outcome of the controversy as to warrant his
invocation of federal-court jurisdiction,” Summers v. Earth
Island Inst., 129 S. Ct. 1142, 1149 (2009) (internal quotation
marks omitted); accord Davis, 554 U.S. at 732. But standing is
not enough. “To qualify as a case fit for federal-court
adjudication, an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.” Davis,
554 U.S. at 732-33 (internal quotation marks omitted). Thus,
“[e]ven where litigation poses a live controversy when filed,”
we must dismiss a case as moot “if events have so transpired
that the decision will neither presently affect the parties’ rights
nor have a more-than-speculative chance of affecting them in
the future.” Clarke v. United States, 915 F.2d 699, 701 (D.C.
Cir. 1990) (internal quotation marks omitted); see Am. Bar Ass’n
v. FTC, No. 105057, 2011 WL 744659, at *3 (D.C. Cir. Mar. 4,
2011).
Neither the Chamber nor NADA claims standing in its own
right; rather, both claim standing to sue on behalf of their
members, particularly their members who are automobile
dealers. An association has standing to sue on behalf of its
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members if: “1) at least one of its members would have
standing to sue in his own right, (2) the interests the association
seeks to protect are germane to its purpose, and (3) neither the
claim asserted nor the relief requested requires that an individual
member of the association participate in the lawsuit.” Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002); see Laidlaw,
528 U.S. at 181. Both the Chamber and NADA satisfy the latter
two conditions; the only question is whether their automobile
dealer members would have standing to sue in their own right.
See also Munsell v. Dep’t of Agric., 509 F.3d 572, 584 (D.C.
Cir. 2007) (holding that when an association sues on behalf of
its members, its claims become moot if its members’ claims
become moot).
When a petitioner claims associational standing, it is not
enough to aver that unidentified members have been injured.
Summers, 129 S. Ct. at 115-521. Rather, the petitioner must
specifically “identify members who have suffered the requisite
harm.” Id. at 1152; see Am. Chemistry Council v. Dep’t of
Transp., 468 F.3d 810, 815, 820 (D.C. Cir. 2006) (holding that
“an organization bringing a claim based on associational
standing must show that at least one specifically-identified
member has suffered an injury-in-fact. . . . At the very least, the
identity of the party suffering an injury in fact must be firmly
established.”). Because the Chamber has not identified a single
member who was or would be injured by EPA’s waiver
decision, it lacks standing to raise this challenge. Id. That flaw
is inconsequential, however, because the Chamber’s co-
petitioner, NADA, has identified allegedly injured members.
See Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C.
Cir. 1998) (finding it unnecessary to address the standing of a
party whose presence or absence is immaterial to a suit’s
outcome, where another petitioner clearly has standing). Along
with its briefs, NADA has submitted declarations from two of its
12
automobile dealer members alleging injury as a result of the
waiver decision.
We must therefore consider whether the automobile dealers
that NADA has identified can satisfy the requirements of
standing (as well as whether their claims have become moot).
The “irreducible constitutional minimum” requirements of
standing are:
(1) that the plaintiff have suffered an “injury in fact” --
an invasion of a judicially cognizable interest which is
(a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) that
there be a causal connection between the injury and the
conduct complained of -- the injury must be fairly
traceable to the challenged action of the defendant, and
not the result of the independent action of some third
party not before the court; and (3) that it be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Bennett v. Spear, 520 U.S. 154, 167 (1997). A petitioner bears
the burden of establishing each of these elements. See Summers,
129 S. Ct. at 1149; Bennett, 520 U.S. at 167-68; Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). That burden
“is to show a ‘substantial probability’ that it has been [or will
be] injured, that the defendant caused its injury, and that the
court could redress that injury.” Sierra Club, 292 F.3d at 899(citation omitted).
With respect to the first element of standing, the petitioners
do not assert that their dealer members had suffered an “actual”
injury at the time they filed their petition for review, Bennett,
520 U.S. at 167. Rather, their concern is about future injury. As
we have noted before, “any petitioner alleging only future
13
injuries confronts a significantly more rigorous burden to
establish standing.” United Transp. Union v. ICC, 891 F.2d
908, 913 (D.C. Cir. 1989). To qualify for standing, the
petitioners must demonstrate that the alleged future injury is
“imminent.” Bennett, 520 U.S. at 167; see Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990) (“Allegations of possible
future injury do not satisfy the requirements of Art. III[;] [a]
threatened injury must be certainly impending to constitute
injury in fact.” (internal quotation marks omitted)). And to
“shift[] injury from ‘conjectural’ to ‘imminent,’” the petitioners
must show that there is a “substantial . . . . probability” of injury.
Sherley v. Sebelius, 610 F.3d 69, 74 (D.C. Cir. 2010); see Sierra
Club, 292 F.3d at 898.
With respect to the second and third elements of standing,
the petitioners here face an additional problem: California’s
emissions standards do not regulate automobile dealers, but
rather automobile manufacturers -- third parties that have
declined to participate in this challenge. See CAL. CODE REGS.
tit. 13 § 1961.1(a)(1) (requiring manufacturers to demonstrate
compliance with fleet-average requirements). “[W]hen the
plaintiff is not himself the object of the government action or
inaction he challenges, standing is not precluded, but it is
ordinarily ‘substantially more difficult’ to establish.” Lujan,
504 U.S. at 562 (quoting, inter alia, Warth v. Seldin, 422 U.S.
490, 505 (1975)). Because any injury to the petitioners’
members hinges on actions taken by manufacturers, the
petitioners carry “the burden of ‘adduc[ing] facts showing that
those [third-party] choices have been or will be made in such
manner as to produce causation and permit redressability of
injury,’” Ctr. for Biological Diversity v. U.S. Dep’t of Interior,
563 F.3d 466, 477 (D.C. Cir. 2009) (quoting Lujan, 504 U.S. at
562). Again, the petitioners must show that, “absent the
[government’s allegedly unlawful actions], there is a substantial
probability that they would [not be injured] and that, if the court
14
affords the relief requested, the [injury] will be removed.”
Warth, 422 U.S. at 504; see Fla. Audobon Soc’y v. Bentsen, 94
F.3d 658, 666 (D.C. Cir. 1996); Kurtz v. Baker, 829 F.2d 1133,
1143-44 (D.C. Cir. 1987).
In the following Part, we apply these principles to the
petitioners’ claims.
III
The petitioners allege two kinds of injury in fact to their
dealer members. First, they contend that in order to comply
with the California standards, automobile manufacturers will
have to alter the mix of vehicles (“mix-shift”) they would
otherwise deliver for sale in California and the other states that
have adopted California’s standards (the Section 177 states). As
a result, dealers in those states will be unable to obtain certain
vehicles that their customers want to buy, placing them at a
competitive disadvantage with respect to out-of-state dealers.
Second, the petitioners argue that enforcement of the new
standards will result in an increase in manufacturers’ costs, and
hence in the price manufacturers charge for the automobiles they
deliver to dealers in California and the Section 177 states. For
this reason, the petitioners contend, either their dealer members
will have to settle for lower profit margins, or they will have to
charge higher prices that will cause some prospective customers
to forgo purchases.
In support of the petitioners’ contention that their dealer
members will suffer imminent injury from mix-shifting and
price increases caused by EPA’s waiver decision, NADA offers
the declarations of two of its members: the owner of a Ford
dealership near the Sierra Nevada Mountains in California, and
the owner of a Lincoln Mercury dealership in Maryland.
Neither declaration, however, suffices to demonstrate the
15
“substantial probability” of injury required to establish the
petitioners’ standing.
In his declaration, Steve Pleau, the owner of the California
dealership, avers that California’s fleet-average standards “could
limit Ford’s ability to deliver certain models to California
dealers,” “may force Ford to ‘compensate’ for delivering high-
emitting vehicles by delivering more light-weight, low-emission
models than the market demands,” and as a consequence “may
limit [his] ability to obtain and keep in stock a sufficient
quantity of the vehicles that [his] customers want or need to buy,
particularly those with the most powerful engines available for
a given model.” Petitioners’ Stand. Add. 10 (emphases added).
Maryland Lincoln Mercury dealership owner Vincent Trasatti,
Jr. is similarly concerned, and similarly equivocal. He worries
that Maryland’s adoption of the California fleet-average
standards “could limit [his] ability to maintain the stock that
[his] customers want and expect [him] to have” and “may limit
the ability of Ford Motor Company [which owns Lincoln
Mercury] to supply [his] dealership with the vehicle stock
necessary to meet consumer demand.” Id. at 13 (emphases
added). “If, as a result of Maryland’s greenhouse gas standards,
Ford Motor Company alters the mix of vehicles that it delivers
to Maryland dealers,” Trasatti “anticipate[s] that it will be more
difficult to stock the mix of vehicles that [his] customers
expect.” Id. (emphasis added). As the petitioners’ brief
summarizes, “[t]he upshot of these anticipated effects is that
NADA’s members may be forced to pay more for certain
vehicles, and may be unable to purchase other vehicles at all.”
Petitioners’ Br. 23 (emphases added).
These are just the kind of declarations that we have
previously rejected as insufficient to establish standing. In
Center for Biological Diversity, for example, we held that
because the petitioners could “only aver that any significant
16
adverse effects . . . ‘may’ occur at some point in the future,”
they failed to show “the actual, imminent, or ‘certainly
impending’ injury required to establish standing.” 563 F.3d at
478; see also La. Envtl. Action Network v. Browner, 87 F.3d
1379, 1384 (D.C. Cir. 1996) (holding that the petitioner’s claim
that “dire consequences . . . would befall it if” certain events
were to transpire was insufficient to “state an injury sufficiently
imminent and concrete for constitutional standing”).
Accordingly, if we are to find that the petitioners have standing,
it must be based on other evidence before the court. See Sierra
Club, 292 F.3d at 899 (holding that a petitioner seeking review
of administrative action in the court of appeals “must either
identify in th[e] record evidence sufficient to support its
standing to seek review, or if there is none . . . , submit
additional evidence to the court”). As an analysis of that
evidence reveals, however, the infirmities of the dealers’
declarations are not a matter of drafting. Rather, they accurately
reflect the weakness of the record.
Because MYs 2009-11 are now largely behind us, and
because the federal government has promulgated national
standards for MYs 2012-16, we divide our analysis of the
injuries asserted by the petitioners into two time periods. In
Subpart A, we examine the likelihood (as measured at the date
of the petition) that the dealers identified by NADA would
suffer an injury in MYs 2009-11 sufficient to confer standing, as
well as whether their claims of injury have been mooted by the
passage of time. In Subpart B, we conduct the injury inquiry
with regard to MYs 2012-16, and also consider whether the
federal government’s promulgation of national standards for
those years -- and California’s adoption of those standards -- has
mooted the case for that period.
17
A
1. With respect to the alleged harm of mix-shifting, the
record evidence indicates that, at the time this petition was filed,
it appeared that Ford would not have to mix-shift to meet the
California standards in MYs 2009 and 2010, and that it was
unlikely to have to do so in MY 2011. A 2009 CARB study
found that, in MY 2009, Ford (as well as GM and Chrysler)
would be in fleet-wide compliance by wide margins with their
2009 models. See 74 Fed. Reg. at 32,772. For MY 2010, the
study again projected fleet-wide compliance for Ford, even in
the “highly unlikely” event that it “makes no changes to [its]
2009 model year vehicles.” Letter from James N. Goldstene,
CARB Exec. Officer to Adm’r Lisa P. Jackson, U.S. EPA, at 25-
26 (April 6, 2009) (hereinafter CARB Comments on
Reconsideration) (J.A. 3454-55).4 CARB also conducted a
“worst-case analysis” that found only a small net greenhouse gas
debit for Ford and two other manufacturers over the 2009-11
model year period, assuming no change in sales mix or
technology after MY 2009. Id. at 24 (J.A. 3453). And it
concluded that, “because this analysis was based on worst case
testing, it is likely that testing with additional vehicles in each
test group would show even the debiting companies in
compliance” throughout the 2009-11 period. Id.; see 74 Fed.
Reg. at 32,772.
The two other studies in the record produced similar results.
A National Resources Defense Council analysis cited by EPA
projected industry-wide compliance in MYs 2009 and 2010 by
wide margins, and industry-wide compliance in MY 2011
through the use of banked credits. See 74 Fed. Reg. at 32,772.
4
The study also projected fleet-wide compliance for GM and
Chrysler in MY 2010, with the use of accumulated credits. CARB
Comments on Reconsideration 26 (J.A. 3455).
18
A study by Energy and Environmental Analysis, Inc. (EEA),
which took into account manufacturers’ existing product plans,
found that Ford “will comply” in MY 2009 and that Ford “can
likely comply” in MY 2010 “by either using banked credits from
2009 or with small adjustments to the power train mix and sales
mix sold in California, if necessary.” ENERGY AND ENVTL.
ANALYSIS, INC., AUTO-MANUFACTURERS ABILITY TO COMPLY
WITH CALIFORNIA GHG STANDARDS THROUGH 2012 (2009)
(hereinafter EEA Report) (J.A. 3330). EEA concluded that Ford
and the other manufacturers “could require additional efforts
such as air conditioner improvements to comply” with the MY
2011 standards. Id. Air-conditioner improvements, however,
are not the kind of mix-shifting injury that the petitioners assert.
Not only have the petitioners failed to establish that at the
time this suit was initiated there was a substantial probability
that Ford would have to mix-shift in California (or Maryland)
during MYs 2009-11, but they have also failed to establish that
even if such mix-shifting were to be required, it would have an
effect on the ability of the identified Ford dealers to meet their
customers’ demands. See Am. Chemistry Council, 468 F.3d at
820 (holding that “an organization bringing a claim based on
associational standing must show that at least one specifically-
identified member has suffered injury-in-fact”). For example,
there is no evidence -- nor even any assertion -- that if Ford had
to mix-shift to comply with California’s fleet-average
requirements, it would be unable to do so by increasing the
proportion of smaller and more fuel-efficient vehicles provided
to dealers in urban areas like San Francisco while maintaining
its supply of trucks and SUVs to dealers near the Sierra Nevadas
like Mr. Pleau. See Press Release, Ford Motor Co., New
Products Drive Ford’s October Sales, Share Gains (Nov. 3,
2009) (EPA Br. Attachment 2). We therefore cannot conclude
that the injury the petitioners predicted was substantially
probable.
19
2. In addition to mix-shifting, the petitioners contend that
enforcement of the new California standards will result in an
increase in the price of automobiles, forcing dealers to settle for
a lower profit margin or to charge higher prices -- which, in turn,
will cause some prospective customers to forgo in-state
purchases. Neither of the two dealer declarations, however,
addresses the price-increase issue at all. Instead, the petitioners
cite a 2005 CARB estimate that new-vehicle costs would rise by
an average of approximately $1,000 per vehicle under the
California regulations. CARB, Final Statement of Reasons, at
11 Table II-2 (Aug. 4, 2005) (J.A. 860). But CARB predicted
a gradual escalation in price, with the increase not reaching
$1,000 until 2016. For MYs 2009 through 2011, CARB’s cost
projections were substantially lower. Id.5
More important, by the time EPA actually granted
California’s waiver in July 2009, market conditions had changed
substantially from those upon which CARB’s 2005 estimate was
based. As we have just discussed, studies CARB conducted in
early 2009 -- based upon data from that model year -- found it
unlikely that Ford would have to change its sales mix or
technology to comply with the California standards through MY
2011. CARB Comments on Reconsideration 23-26 (J.A. 3452-
55). This was because manufacturers were already employing
enhanced greenhouse gas-reducing technologies necessary for
compliance. Id. at 19 (J.A. 3448). Indeed, Ford’s December
2008 business plan -- issued seven months before EPA granted
the waiver -- described the automaker’s independent intention
to invest $14 billion to improve its fleet fuel economy “from the
5
For example, for passenger cars, small trucks, and small SUVs,
CARB estimated average cost increases of $17 in 2009, $58 in 2010,
and $230 in 2011. The projected increase for large trucks and SUVs
in 2011 was $176. See CARB, Final Statement of Reasons, at 11
Table II-2 (J.A. 860).
20
2005 model year baseline every year,” leading to 14 percent
improvement by 2009 and 26 percent improvement by 2012.
Ford Motor Co. Business Plan, Submitted to the House
Financial Services Committee, at 14 (Dec. 2, 2008) (cited in
Decision Granting a Waiver, 74 Fed. Reg. at 32,773 n.181).
Hence, the petitioners have failed to demonstrate a substantial
probability that the waiver -- as distinct from Ford’s own
business plans -- would cause it injury in the form of price
increases during MYs 2009-11.
3. Finally, we note that by the date of oral argument, MYs
2009 and 2010 were already over, and MY 2011 (which began
in the last quarter of 2010) was well underway. The petitioners
have submitted no evidence that their members actually suffered
injury during any part of that period. Even if they had, vacating
California’s waiver could not possibly affect the mix or price of
automobiles delivered during the period that has passed. Indeed,
the petitioners acknowledged at oral argument that vacating the
waiver likely would have no effect during the balance of MY
2011 either. Oral Arg. Recording 4:20-:55. Hence, even if the
petitioners had been able to establish injury in MYs 2009-11
sufficient to confer standing, any injury that did occur during
that period is now moot. Our jurisdiction to review this
challenge therefore hinges entirely upon the impact that the
waiver decision will have on the petitioners’ members during
MYs 2012-16, the remainder of the time during which the
California waiver applies.
B
1. Turning to MYs 2012-16, we first consider whether the
petitioners have shown that NADA’s identified members will
suffer the kind of injury requisite for standing during those
years. Although the argument that the dealers will be harmed by
higher vehicle prices or mix-shifting during that period is
21
stronger than for MYs 2009-11, their standing is still
problematic.
As noted above, CARB’s 2005 estimate projected
considerably greater price increases for MYs 2012-16 than for
the earlier period.6 And with respect to mix-shifting, there is
certainly evidence -- although not specific to Ford -- that
manufacturers will have more difficulty complying with
California’s standards in MYs 2012-16 without altering the mix
of vehicles they sell in California and the Section 177 states.7
But even if the petitioners can establish the imminence of
their alleged mix-shifting and price-increase injuries, they still
6
The same study, however, projected that by the time the
California standards are fully phased in, any increase in average
vehicle costs will be more than offset by fuel-cost savings over the life
of the vehicle, resulting in a net decrease in the effective price of
automobiles -- even on the assumption that gasoline prices are an
unrealistically low $1.74 per gallon. CARB, Final Statement of
Reasons, at 11 (J.A. 860).
7
The EEA Report, on which the petitioners rely, does not
conclude that manufacturers are likely to mix-shift, only that
compliance with the MY 2012 requirements “may require credit
trading and banked past and future credits over and above credits from
air conditioner improvements and introduction of alternative fuel
vehicles.” EEA Report (J.A. 3331). Similarly, although Chrysler did
state that “it may be necessary to restrict sales of certain vehicle
models” if EPA granted the waiver, it characterized that possibility as
a “last resort” and said it would “try its best to comply using available
technology.” CARB Comments on Reconsideration 27 (J.A. 3456);
see also 74 Fed. Reg. at 32,773. The comments of industry groups
were less equivocal (although not manufacturer-specific), warning that
“the only means by which most large-volume manufacturers will be
able to meet the CARB standards [in 2012-16] is by ‘mix-shifting’
their product lines.” 74 Fed. Reg. at 32,774.
22
face difficulty satisfying the remaining prongs of standing
analysis: causation and redressability. In public statements
cited in the appellate record, Ford has said that it sees rising
consumer demand for fuel-efficient vehicles as key to its long-
term growth, and that it is developing its product line
accordingly.8 These and other statements suggest that Ford’s
own market analysis may independently lead it to implement
technology that will continue to meet the California standards,
even in the absence of regulatory compulsion. See
EPA/NHTSA Joint Public Hearing Transcript, at 13-14 (Oct. 21,
2009) (Amici Car Dealers Br. Attachment 7) (testimony by Ford
Vice President that Ford has a “long-term sustainability plan
. . . to improv[e] the fuel economy and reduc[e] the greenhouse
gas emissions of our fleet,” which “includes converting three
truck and SUV plants to build small cars, re-tooling our
powertrain facilities to manufacture EcoBoost engines and
. . . increasing our hybrid offerings,” because “it is the right
thing to do for our customers”); 74 Fed. Reg. at 32,773 (citing
testimony that Ford “plans to improve the average fuel economy
by . . . 36 percent by 2015”). Petitioners have offered no
evidence to the contrary, and no evidence that, if the waiver
were vacated, Ford would proceed on a different course more
favorable to the petitioners. See Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 41-42 (1976) (holding that a plaintiff lacks
standing where its claimed injury “results from the independent
action of some third party not before the court”); see also United
Transp. Union, 891 F.2d at 915 (holding that, “since any
hypothetical future injury could also occur even in the absence
8
See, e.g., Jamie LaReau, Ford goes green, small, high-tech,
Automotive News, Aug. 2, 2010 (Amici Car Dealers Br. Attachment
4); Press Release, Ford Motor Co., New Products Drive Ford’s
October Sales, Share Gains (Nov. 3, 2009) (EPA Br. Attachment 2).
23
of the challenged [agency action], a favorable decision from this
court would not be ‘likely’ to redress it”).9
2. In any event, we need not definitively decide whether the
petitioners have carried their burden of establishing standing
with respect to injury in MYs 2012-16 because the petition is
plainly moot for those years. As recounted in Part I, after the
petition for review was filed, EPA and NHTSA promulgated
national greenhouse gas standards for MYs 2012-16, see 75 Fed.
Reg. 25,324, and California amended its regulations to deem
compliance with those national standards as compliance with its
own, see CAL. CODE REGS. tit. 13 § 1961.1(a)(1)(A)(ii).
Beginning in MY 2012, automobile manufacturers will have to
9
A comparison of the relatively weak record in this case to the
abundant evidence we found sufficient to establish standing in
Competitive Enterprise Institute v. NHTSA, 901 F.2d 107 (D.C. Cir.
1990), is instructive. In that case, an association challenged the
agency’s decision to require higher fuel economy standards than the
association thought appropriate, contending that those standards
hampered its members’ ability to purchase larger passenger cars. In
contrast to the disputed future injury posited by the Ford dealers in this
case, the affidavits offered in Competitive Enterprise Institute averred
that the members had already suffered actual injury: they had “looked
for but [had] been unable to find new cars of large size, such as station
wagons, in a price range they could afford.” Id. at 112-13. Nor did
the petitioners suffer from the causation and redressability problems
that we discuss in the text above. “The evidence supporting th[e]
causal link” between the standards and the decreased production of
large automobiles was “contained in the agency’s own factfinding.”
Id. at 114. There was “overwhelming evidence” in the record “that the
auto manufacturers’ . . . product mix decisions [were] not made
substantially independent of the government’s imposition of fuel
economy standards,” id. at 116, and that “manufacturers [were] likely
to respond to lower . . . standards by continuing or expanding
production of larger, heavier vehicles,” id. at 117.
24
comply with the national standards whether we vacate the
waiver decision or not. Hence, the national standards, and not
EPA’s waiver decision, will be responsible for any injury
NADA members may suffer from higher prices or mix-shifting
in MYs 2012-16. Moreover, the specific injury that the
petitioners attribute to mix-shifting -- the risk that California
dealers will lose sales to dealers in neighboring states that have
not adopted California’s regulations -- will disappear entirely.
Manufacturers selling to dealers outside of California and the
Section 177 states will be subject to the same standards as those
selling to dealers within them. Accordingly, because the
California exception will not be the cause of any injury to the
petitioners, their petition is moot.10
The petitioners acknowledge that, beginning in MY 2012,
EPA’s national greenhouse gas standards will be “virtually
identical” to California’s standards. Petitioners’ Br. 8. Indeed,
notwithstanding their use of “virtually” as a qualifier, the
petitioners do not describe any way in which the standards will
differ. Nonetheless, they suggest five reasons why the waiver
decision will have other continuing effects on NADA’s
members sufficient to preserve their entitlement to review.
Those asserted continuing effects, considered individually or
cumulatively, fail to establish that the petitioners maintain a
10
See Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982)
(finding the case moot because, “while the case was pending on
appeal, the University substantially amended its regulations”); Nat’l
Mining Ass’n v. U.S. Dep’t of the Interior, 251 F.3d 1007, 1011 (D.C.
Cir. 2001) (holding that the agency’s revision of challenged
regulations mooted a challenge to those regulations); Motor & Equip.
Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458-59 (D.C. Cir. 1998)
(holding that California’s elimination of a regulatory requirement
mooted a challenge to that requirement); Motor & Equip. Mfrs. Ass’n,
Inc. v. EPA, 627 F.2d 1095, 1105 n.18 (D.C. Cir. 1979) (same).
25
“legally cognizable interest in the outcome,” U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (internal
quotation marks omitted).
First, the petitioners argue that, even though California and
federal standards will be virtually identical in MY 2012, their
members will suffer injury because they will be subject to
enforcement by both EPA and California if they sell
noncompliant cars. But as the respondents point out, there is no
such thing as a “noncompliant car” for purposes of the
California greenhouse gas standards. Those standards impose
fleet-average requirements, see CAL. CODE REGS. tit. 13 §
1961.1(a)(1), and accordingly regulate manufacturers, not
dealers, id.; see Petitioners’ Br. 7 (acknowledging that
California’s “standards do not . . . require that individual
vehicles meet certain emission levels,” but rather require
compliance “on a California fleet-wide basis” (emphasis in
original)). Thus, an automobile manufacturer that fails to
comply with the fleet-average requirements in MY 2012 could
conceivably face penalties from both the federal government and
California. But there is no evidence in the record that the
possibility of dual enforcement against manufacturers will cause
any more mix-shifting or price increases -- the only injuries
identified for dealers -- than federal enforcement alone.
Second, the petitioners point out that some of the Section
177 states that enforce California’s standards have not yet
amended their regulations to acquiesce in the national standards
as California has. As a result, the petitioners contend,
manufacturers will have to comply with the original California
standards in those states, and the result will be mix-shifting and
price increases for NADA’s dealer members in those states. But
the only two dealer-members that NADA has specifically
identified as injured by the California exemption are located in
states that have already expressly acquiesced in the federal
26
standards: California and Maryland.11 If NADA has standing,
it is only because at least one of those dealers has standing, see
Summers, 129 S. Ct. at 1152, and if the claims of both are moot,
then NADA’s claims are moot as well, see Munsell 509 F.3d at
584. In any event, all of the Section 177 states are statutorily
obligated to ensure that any “standards relating to control of
emissions” that they seek to enforce are “identical to the
California standards for which a waiver has been granted.” 42
U.S.C. § 7507 (emphasis added). Because those California
standards now provide that compliance with the federal
standards constitutes compliance with the state’s for MYs 2012-
16, so must the standards of all the Section 177 states.12
11
California has already amended its regulations to accept
compliance with the national standards, see CAL. CODE REGS. tit. 13
§ 1961.1(a)(1)(A)(ii), and Maryland has announced that it will do so
as well, see 38 Md. Reg. 67, 125-27 (Jan. 14, 2011).
12
In a footnote to their reply brief, petitioners worry that
California’s deemed-to-comply amendment might be considered an
“enforcement mechanism” rather than a “standard,” and hence not be
subject to the “identicality requirement” of § 7507. See Petitioners’
Reply Br. 7 n.2 (citing Motor Vehicle Mfrs. Ass’n v. N.Y. State Dep’t
of Envtl. Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996)
(distinguishing between standards and enforcement mechanisms)).
Although that issue is not before us on this appeal, we find such a
result highly unlikely. California’s amendment modifies the
substantive emissions standards with which manufacturers must
comply in MY 2012, and it therefore bears little resemblance to
“enforcement mechanisms” such as “periodic testing and maintenance
requirements,” Am. Auto. Mfrs. Ass’n v. Cahill, 152 F.3d 196, 200 (2d
Cir.1998). California agrees, see California Br. 8, and the petitioners
acknowledge that this is “the better view,” Oral Arg. Recording 13:20-
14:00.
27
Third, the petitioners contend that they are under a
continuing threat of injury from California’s standards because,
if the federal standards are invalidated in a pending court case,
the California standards could be reimposed. But the federal
regulations are currently in force, subject to the usual
presumption of validity, see New York v. EPA, 413 F.3d 3, 22
(D.C. Cir. 2005), and at this point the possibility that they may
be invalidated is nothing more than speculation.13 Nor is there
any way in which we can realistically move that possibility out
of speculation’s realm: the petitioners have not even attempted
to set forth the arguments in favor and against such an
invalidation; even if they had, we would be disinclined to
conduct the kind of “trial within a trial” necessary to assess the
likelihood that a challenge to the federal standards would
prevail. The prospect that litigants could be injured “if” a court
were someday to invalidate the federal regulations and “if”
California thereafter were to reimpose its standards, is little
different from the prospect that any litigant could be injured “if”
EPA (or Congress) were eventually to enact a rule it presently
had under consideration. To seek judicial review of such a
contemplated-but-not-yet-enacted rule is to ask the court for an
advisory opinion in connection with an event that may never
come to pass. Federal courts decline to offer such opinions
13
In Louisiana Environmental Action Network v. Browner, this
court rejected a petitioner’s standing to challenge EPA regulations that
would allow EPA to approve a state air pollution requirement and then
enforce it as a federal requirement. 87 F.3d at 1383-84. The
petitioner had “suggest[ed] that federal enforcement of state
regulations may mean that, if a state court voids the state air-pollution
rule, federal officials still may enforce it.” Id. at 1384.
Acknowledging that this prediction “may be possible,” we concluded
that it was not “so probable as to convince us that the [challenged
regulations] somehow affect the utilities petitioners in their current
conduct to the extent that their ‘injury’ may be deemed actual or
imminent at this time.” Id.28
because “Article III of the Constitution limits federal ‘Judicial
Power’ . . . to ‘Cases’ and ‘Controversies,’” a limitation that
“defines the ‘role assigned to the judiciary in a tripartite
allocation of power to assure that the federal courts will not
intrude into areas committed to the other branches of
government.’” Geraghty, 445 U.S. at 395-96.14
Fourth, the petitioners appear to suggest that, even if the
federal standards are not invalidated, California “could withdraw
its pledge to follow [those] standards whenever it likes and
enforce its state-specific standards instead.” Petitioners’ Reply
Br. 7. But “the mere power to reenact a challenged law is not a
sufficient basis on which a court can conclude that a reasonable
expectation of recurrence exists. Rather, there must be evidence
indicating that the challenged law likely will be reenacted.”
14
We acknowledge there is an argument that the sixty-day
window for judicial review specified in 42 U.S.C. § 7607(b) could bar
the petitioners from challenging the 2009 waiver decision if they
cannot sue until (and unless) the federal regulations are invalidated.
We note, however, that § 7607(b) itself recognizes an exception to the
sixty-day bar for petitions “based solely on grounds arising after such
sixtieth day.” § 7607(b)(1). And, as we have repeatedly held, “[this]
provision for judicial review . . . for suits based on newly arising
grounds encompasse[s] the occurrence of an event that ripens a
claim.” Am. Road & Transp. Builders Ass’n v. EPA, 588 F.3d 1109,
1113-14 (D.C. Cir. 2009); see La. Envtl Action Network, 87 F.3d at
1381 (stating that “[i]f, at some later time, one or more of the parties
develops a justiciable claim, they will be able to seek judicial relief”).
Although we do not now decide whether this exception would permit
the petitioners to reassert their challenge in the event the federal
standards are vacated and the California standards reimposed, we do
note that our precedent permitting an exception to the sixty-day
window for newly ripened suits renders even more speculative the
petitioners’ claim that they must be permitted to sue now to prevent
the possibility of future injury.
29
Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d 346,
349 (D.C. Cir. 1997); see Rio Grande Silvery Minnow v. Bureau
of Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010) (“[T]he
‘mere possibility’ than an agency might rescind amendments to
its actions or regulations does not enliven a moot controversy.”
(citation omitted)).15 “There is no evidence in the record to
suggest that [California] might repeal the [deemed-to-comply
amendment]” while the federal regulations remain intact, Nat’l
Black Police Ass’n, 108 F.3d at 349, and the petitioners have
offered no reason why California would wish to do so. In any
event, the petitioners do not anywhere describe the differences
between the original California and the new federal standards
for MY 2012-16, and hence do not show how enforcement of
the state-specific regulations -- even if reimposed -- would cause
them injury beyond that caused by intact federal regulations.
Finally, the petitioners contend that “the current Waiver
Decision may make it easier for California to obtain waivers for
future [greenhouse gas] standards and regulations -- and
concomitantly more difficult for NADA’s members to challenge
those waiver requests.” Petitioners’ Br. 26-27. They note that,
“[a]ccording to EPA, if a California emissions standard has
15
As we said in a recent case involving FTC regulations:
It does not matter that the FTC might hereafter pursue
notice-and-comment rulemaking to promulgate new rules
. . . . Nor does it matter that the agency may pursue a new
enforcement policy . . . . These are merely hypothetical
possibilities -- indeed, the parties may even view them as
likely possibilities. But they are nothing more than
possibilities regarding regulations . . . that do not presently
exist. This is not enough to give rise to a live dispute. . . .
The case now before the court is moot.”
Am. Bar Ass’n v. FTC, 2011 WL 744659, at *5.
30
already received a Clean Air Act waiver, then the agency is not
required to subject amendments to that standard to ‘full waiver
analysis,’ so long as the amendments are ‘within-the-scope’ of
a previously granted waiver.” Id. at 26 (quoting 75 Fed. Reg.
11,878, 11,879 (Mar. 12, 2010)). Thus, EPA’s approval of the
instant waiver request assertedly “eases the standards under
which certain, future waiver requests are likely to be
considered” by the agency. Id.This possible future injury is again speculative. Keeping in
mind the difficulty the petitioners have had in showing that the
current California regulations will injure NADA’s identified
members, it is even more speculative that California will
someday amend those regulations in a way that both injures
those members and comes within the scope of the current
waiver. Moreover, even if that eventuality should come to pass,
it seems at least more likely than not that NADA would then be
able to challenge the current waiver -- and thus eliminate its
precedential value. See supra note 14.
The petitioners maintain that the possibility that this injury
will come to pass is more than speculative because California
has already announced that it is developing stricter greenhouse
gas standards for MYs 2017-25. See Petitioners’ Reply Br. 8 n.3
(citing Statement of the California Air Resources Board
Regarding Future Passenger Vehicle Greenhouse Gas Emission
Standards, at 1 (May 21, 2010), available at
http://www.arb.ca.gov/newsrel/2010/VehState.pdf (hereinafter
CARB Statement on Future Standards)). But the federal
government has also announced plans to develop “stringent”
greenhouse gas and fuel economy standards for those same
model years. See 2017 and Later Model Year Light Duty
Vehicle GHG Emissions and CAFE Standards (Notice of
Intent), 75 Fed. Reg. 62,739, 62,741 (Oct. 13, 2010). According
to the federal announcement, stakeholders agree that it will be
31
important to “maintain a single nationwide program” in those
years, id. at 62,742, and California’s announcement states that
its goal is that “compliance with new national standards after
2016 may serve to meet the new 2017-2025 model year
California standards,” CARB Statement on Future Standards, at
1. Thus, far from removing the petitioners’ asserted injury from
the realm of speculation, these announcements only reinforce
the conclusion that it is entirely speculative.
3. In sum, even if NADA had standing when it initially
sought review, “events have so transpired that [our] decision
will neither presently affect the parties’ rights nor have a more-
than-speculative chance of affecting them in the future,” Clarke,
915 F.2d at 701 (internal quotation marks omitted). Because
“this case has ‘lost its character as a present, live controversy of
the kind that must exist if we are to avoid advisory opinions on
abstract questions of law,’” Schmid, 455 U.S. at 103 (quoting
Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam)), it is now
moot.
IV
At oral argument, the petitioners suggested that, if we
conclude the promulgation of national greenhouse gas standards
for MYs 2012-16 renders this suit moot, we should vacate
EPA’s waiver decision. The petitioners’ suggestion of vacatur
is forfeited, however, as they raised it for the first time at oral
argument. See Orion Sales, Inc. v. Emerson Radio Corp., 148
F.3d 840, 843 (7th Cir. 1998) (holding that the appellant waived
its request for vacatur by not raising it until oral argument); Ark
Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir.
2003) (holding that contentions first raised at oral argument are
waived); see also United States v. Munsingwear, 340 U.S. 36,
40-41 (1950) (holding that a party can waive its right to vacatur
32
of a lower-court order that becomes moot on appeal). In any
event, vacatur is not called for here.
In United States v. Munsingwear, the Supreme Court noted
that vacatur “is commonly utilized . . . to prevent a [district
court] judgment, unreviewable because of mootness, from
spawning any legal consequences.” 340 U.S. at 40. In A.L.
Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329-
30 (1961), the Court extended this practice to “unreviewed
administrative orders,” vacating an order of the Interstate
Commerce Commission (ICC) authorizing proposed railroad
rates because -- before the ICC’s approval order could be
judicially reviewed -- the appellee railroads mooted the case by
withdrawing the rates. We, too, have routinely vacated agency
orders rendered unreviewable by intervening events. See, e.g.,
Am. Family Life Ins. Co. v. FCC, 129 F.3d 625, 630-31 (1997)
(vacating FCC order, which found that AFLAC had violated the
Communications Act, after the case became moot because
AFLAC sold its television stations and dissolved); Radiofone v.
FCC, 759 F.2d 936 (D.C. Cir. 1985) (concluding that the
petitioners’ challenge to an FCC ruling in favor of a competitor
was moot because the competitor went out of business, and
vacating the ruling at issue).
But the EPA decision at issue here is not unreviewable; it
is only the challenge brought by the petitioners in this case that
is beyond our authority to review. EPA’s promulgation of
national greenhouse gas emissions standards, and California’s
acquiescence in those standards, have rendered the dealers’
already tentative claim of injury so speculative that a suit on
their behalf cannot satisfy Article III’s case-or-controversy
requirement. If the suit had been brought on behalf of
automobile manufacturers rather than dealers, however, it would
not necessarily have been mooted by those developments --
provided that the manufacturers could persuasively show they
33
would suffer additional injury from the costs of direct, albeit
duplicative, regulation by California. To vacate the agency’s
action under the present circumstances would thus be akin to
vacating a district court decision that was not appealed by either
of the principal parties, but rather by an intervenor whose
particular interest in the matter had evaporated before the
appellate court could rule.
Moreover, notwithstanding the absence of continuing injury
to the petitioner automobile dealers, California retains a
sovereign interest in being able to enforce its own regulations
against automobile manufacturers -- just as states have a
sovereign interest in enforcing state drug laws even if they
coincide with federal drug laws. We will not vacate the waiver
decision granting California this enforcement authority simply
because the particular petitioners before us lack the requisite
personal stake to sustain their challenge.
Indeed, in his separate opinion in Radiofone v. FCC, then-
Judge Scalia cautioned against such an application of the
Munsingwear rule. That rule, he explained, “does not apply to
[agency orders] automatically, since what moots the dispute
before us does not necessarily nullify the agency action.” 759
F.2d at 940 (Scalia, J., concurring). In Radiophone itself, he
noted, it was appropriate to vacate the challenged FCC ruling
because the challengers’ case was mooted when the recipient of
the favorable ruling -- a competitor of the challengers -- went
out of business. But, Judge Scalia pointed out, while “the
dispute before us would just as effectively be mooted” if the
challengers rather than the recipient had gone out of business, in
that case “the agency action would continue to have present
concrete effect” and “we would assuredly not vacate the
agency’s approval of [the recipient’s] continuing operations.”
Id. at 940-41.
34
Likewise here, we would assuredly not vacate the agency’s
approval of California’s standards if the case were mooted
simply because the two identified automobile dealers had gone
out of business. Nor will we vacate it because intervening
events have obviated any harm those dealers might suffer as a
consequence of the standards. Notwithstanding the absence of
a continuing concrete effect on the petitioners, the waiver
decision “continue[s] to have present concrete effect” on
California (and likely on manufacturers as well) by authorizing
the state’s standards. And that is sufficient to render “the
equitable remedy of vacatur,” U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 25 (1994), inappropriate in
this case.
V
“In limiting the judicial power to ‘Cases’ and
‘Controversies,’ Article III of the Constitution restricts it to the
traditional role of Anglo-American courts, which is to redress or
prevent actual or imminently threatened injury to persons caused
by private or official violation of law. Except when necessary
in the execution of that function, courts have no charter to
review and revise . . . executive action.” Summers, 129 S. Ct. at
1148. Here, there is no such necessity. Even if EPA’s decision
to grant California a waiver for its emissions standards once
posed an imminent threat of injury to the petitioners -- which is
far from clear -- the agency’s subsequent adoption of federal
standards has eliminated any independent threat that may have
existed. Under these circumstances, the petitioners’ challenge
amounts to a request for an advisory opinion regarding the
waiver’s validity. And that, of course, is precisely the kind of
opinion we are without authority to give. Preiser v. Newkirk,
422 U.S. at 401.
35
For the foregoing reasons, the petition for review is
dismissed for want of jurisdiction.
So ordered.