Association of Battery Recyclers, Inc. v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2013 Decided May 28, 2013
No. 12-1129
ASSOCIATION OF BATTERY RECYCLERS, INC., ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ
JACKSON,
RESPONDENTS
RSR CORPORATION, ET AL.,
INTERVENORS
Consolidated with 12-1130, 12-1134, 12-1135
On Consolidated Petitions for Review of Final Action of
the United States Environmental Protection Agency
Mark W. DeLaquil argued the cause for Industry-
Petitioners/Industry Respondent-Intervenors. With him on
the briefs were Robert N. Steinwurtzel, Thomas E. Hogan,
Timothy J. Fitzgibbon, Bernard F. Hawkins Jr., Clarence
Davis, Newman Jackson Smith, and Dennis Lane.
2
Emma C. Cheuse argued the cause for Environmental
Petitioners/Environmental Respondent-Intervenors. With her
on the briefs were James S. Pew and Avinash Kar.
Timothy D. Backstrom argued the cause for intervenor
RSR Corporation. With him on the brief was Lynn L.
Bergeson.
Angeline Purdy, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief was
Steven Silverman, Attorney, U.S. Environmental Protection
Agency.
Before: TATEL, Circuit Judge, and SILBERMAN and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Senior Circuit Judge
SILBERMAN.
PER CURIAM: In this case we consider challenges to
EPA’s revised emissions standards for secondary lead
smelting facilities. Finding petitioners’ claims unpersuasive,
foreclosed by Circuit precedent, or otherwise barred from
review, we deny in part and dismiss in part the petitions for
review.
I.
Section 112 of the Clean Air Act requires EPA to
promulgate emissions standards for major sources of
hazardous air pollutants (“HAPs”). 42 U.S.C. § 7412(d)(1).
To do so, EPA calculates the “maximum achievable control
technology” or “MACT,” a process that occurs in two stages.
First, under CAA section 112(d)(3), EPA sets what it calls the
3
“MACT floor”—certain minimum stringency requirements
based on the amount of emissions reduction achieved in
practice by the best performing sources. Id. § 7412(d)(3).
Second, under section 112(d)(2), EPA “determines whether
stricter standards, known as ‘beyond-the-floor’ limits, are
achievable in light of the factors listed in [that provision].”
Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 858
(D.C. Cir. 2001) (per curiam); see 42 U.S.C. § 7412(d)(2).
Section 112(d)(6) requires EPA to “review, and revise as
necessary (taking into account developments in practices,
processes, and control technologies)” the emissions standards
promulgated under section 112. 42 U.S.C. § 7412(d)(6).
Section 112(f)(2) also requires EPA to review emissions
standards to “consider whether residual risks [to public health
or the environment] remain that warrant more stringent
standards than achieved through MACT.” Sierra Club v. EPA,
353 F.3d 976, 980 (D.C. Cir. 2004); see 42 U.S.C.
§ 7412(f)(2)(A).
In 2012, acting pursuant to sections 112(d)(6) and
112(f)(2), EPA revised the 1995 emissions standards for
secondary lead smelting facilities, reducing allowable
emissions by 90%—from the 2.0 milligrams per dry standard
cubic meter (mg/dscm) previously permitted to 0.2
mg/dscm—and requiring smelters to totally enclose certain
“fugitive” emission sources. See National Emissions
Standards for Hazardous Air Pollutants from Secondary Lead
Smelting (“Secondary Lead Rule”), 77 Fed. Reg. 556, 559,
564 (Jan. 5, 2012). Several industry groups and environmental
groups filed petitions for review. Environmental and industry
petitioners intervened as respondents in one another’s cases,
and RSR Corporation intervened both as a petitioner and as a
respondent.
4
II.
Industry petitioners first argue that the Secondary Lead
Rule impermissibly regulates elemental lead as a HAP.
Although EPA must regulate lead compounds as a HAP, see
42 U.S.C. § 7412(b)(1), the Clean Air Act prohibits EPA from
listing or “in effect treat[ing]” elemental lead—or any criteria
pollutant for which national ambient air quality standards
(“NAAQS”) are promulgated—as a HAP under section 112,
National Lime Association v. EPA, 233 F.3d 625, 638 (D.C.
Cir. 2000); see also 42 U.S.C. § 7412(b)(2) (“No [criteria
pollutant] may be added to the list under this section . . . .”);
id. § 7412(b)(7) (“The Administrator may not list elemental
lead as a hazardous air pollutant under this subsection.”).
Petitioners claim that the Rule violates this prohibition by (1)
specifying a testing method that measures the mass of
elemental lead (rather than the mass of lead compounds) in a
source’s emissions; and (2) setting HAP emissions standards
at levels designed to attain the primary lead NAAQS. As
counsel for industry petitioners conceded at oral argument,
see Oral Arg. Rec. 1:07:17–1:07:53, the first contention is
time-barred because the 1995 emissions standards employed
an identical testing method (Method 12) and that approach
was not challenged in court at that time. See National
Emission Standards for Hazardous Air Pollutants from
Secondary Lead Smelting, 60 Fed. Reg. 32,587, 32,589 (June
23, 1995); 42 U.S.C. § 7607(b)(1) (requiring that any petition
for review be filed within sixty days of publication in the
Federal Register). The second contention also fails because
the Rule sets HAP emissions standards at levels designed to
attain the primary lead NAAQS, not the converse. The Rule in
no way alters the NAAQS itself: it does not change the
NAAQS level, impose an earlier NAAQS attainment date, or
modify state implementation plans.
5
Industry petitioners next make a related argument that
because the Secondary Lead Rule “measure[s] lead
compounds by reference to their elemental lead content and
toxicity”—the same methodology they claim is used to
measure elemental lead in the prevention of significant
deterioration (“PSD”) program—regulation of these
substances under the PSD program is duplicative and
unlawful. Industry Petitioners’ Br. 30; see 42 U.S.C.
§ 7412(b)(6) (providing that PSD program shall not apply to
HAPs listed under section 112). But we lack jurisdiction to
consider this argument because EPA took no action with
respect to the PSD program in this rulemaking.
Next, industry petitioners challenge EPA’s methodology
for estimating fugitive emissions at secondary lead smelting
facilities and EPA’s reliance on these estimates to conclude
that total enclosure of fugitive emission sources was
warranted. As EPA points out, however, industry petitioners
“suggested in comments that any error in EPA’s methodology
resulted in an underestimation of emissions from completely
unenclosed facilities.” Respondents’ Br. 52. Thus, even if
industry petitioners were correct, given that emissions from
such facilities drove EPA’s finding of unacceptable risk, they
would “have done no more than show that the record even
more fully supports the enclosure standard.” Respondents’ Br.
53. Accordingly, petitioners lack standing to press this claim
because they have failed to show that, absent the alleged
methodological error, “ ‘there is a substantial probability that
they would not be injured and that, if the court affords the
relief requested, the injury will be removed.’ ” Coalition for
Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 146 (D.C.
Cir. 2012) (per curiam) (quoting Chamber of Commerce v.
EPA, 642 F.3d 192, 201 (D.C. Cir. 2011)).
6
Industry petitioners’ challenge to the Rule’s requirement
of lead continuous emissions monitoring systems (“CEMS”)
fares no better. To begin with, any claim that the CEMS
requirement is arbitrary and capricious is premature. EPA has
yet to promulgate performance specifications for CEMS and,
until it does, smelters have no obligation to install CEMS. See
40 C.F.R. § 63.548(l)(1) (requiring sources to install a lead
CEMS “within 180 days” of promulgation of performance
specifications). As petitioners themselves recognize, “without
a [performance] specification it is impossible to determine
whether lead CEMS will function appropriately in secondary
lead smelters” or to ascertain “accurate cost information for
the installation and operation of lead CEMS.” Industry
Petitioners’ Br. 22, 23. This court would thus clearly “benefit
from further factual development of the issues” in connection
with the performance specification rulemaking. Ohio Forestry
Association, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
With respect to petitioners’ procedural claim that the
proposed rule referred to no “data in the record supporting the
feasibility and cost-effectiveness of lead CEMS that would
allow for meaningful public comment,” Industry Petitioners’
Br. 23; see 42 U.S.C. § 7607(d)(3), EPA counsel assured us at
oral argument that stakeholders will have the opportunity to
challenge—and that EPA will reconsider imposing—the
CEMS requirement itself in connection with the performance
specification rulemaking, and counsel for industry petitioners
agreed that this resolves their concern, see Oral Arg. Rec.
47:41–48:48, 1:06:45–1:06:55.
We also reject industry petitioners’ contention that EPA’s
refusal to consider granting existing sources up to three years
to comply with the revised emissions standards under CAA
section 112(i)(3) was arbitrary and capricious. See 42 U.S.C.
§ 7412(i)(3) (authorizing the Administrator to grant existing
sources up to three years for compliance with emissions
7
standards). EPA concluded that section 112(f)(4), which
permits it to grant a waiver of no more than two years for
compliance, see id. § 7412(f)(4), instead provided the
governing framework for emissions standards promulgated
under section 112(f), like those at issue here. This
interpretation comports with the statute’s unambiguous
language. Although section 112(i)(3)’s three-year maximum
compliance period applies generally to “any emissions
standard . . . promulgated under [section 112],” id.
§ 7412(i)(3), section 112(f)(4)’s two-year maximum applies
more specifically to standards “under this subsection,” i.e.,
section 112(f), id. § 7412(f)(4). It is a well-established
principle of statutory construction that “ ‘[g]eneral language
of a statutory provision, although broad enough to include it,
will not be held to apply to a matter specifically dealt with in
another part of the same enactment.’ ” RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071
(2012) (alteration in original) (quoting D. Ginsberg & Sons,
Inc. v. Popkin, 285 U.S. 204, 208 (1932)). Because Congress
clearly intended to grant existing sources no more than two
years to comply with standards promulgated under section
112(f), that is the end of the matter. See Chevron U.S.A. Inc.
v. NRDC, 467 U.S. 837, 842 (1984).
Equally without merit is industry petitioners’ claim that
EPA’s decision to revise emissions standards under section
112(d)(6) was arbitrary and capricious. Although petitioners
contend that EPA failed to consider public health objectives
or other controls imposed on emissions sources in
determining whether more stringent standards were
“necessary,” nothing in section 112(d)(6)’s text suggests that
EPA must consider such factors. To the contrary, the statute
directs EPA to “tak[e] into account developments in practices,
processes, and control technologies,” 42 U.S.C. § 7412(d)(6),
8
not public health objectives or risk reduction achieved by
additional controls.
III.
We turn next to environmental petitioners’ challenge and
begin with Article III standing. Contrary to industry
intervenors’ claim, environmental petitioners have shown that
their members “would have standing under Article III to sue
in [their] own right,” as required to establish associational
standing. NRDC v. EPA, 489 F.3d 1364, 1370 (D.C. Cir.
2007). Several members aver that they live or work in close
proximity to smelters and have reduced their time outdoors in
response to concerns about pollution—precisely the kinds of
harms the Supreme Court has deemed sufficient to show
injury in fact. See Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 183
(2000) (“[E]nvironmental plaintiffs adequately allege injury
in fact when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of the
area will be lessened by the challenged activity.’ ” (quoting
Sierra Club v. Morton, 405 U.S. 727, 735 (1972))); Theresa
Cano Decl. ¶¶ 3, 13–15; Michael Mullen Decl. ¶¶ 3, 5–7;
Thad Carlson Decl. ¶¶ 3–4, 6–7; Jennifer McLellan Decl.
¶¶ 3–6. Moreover, were we to require EPA “to regulate the
HAPs to which [their] members are exposed more stringently
than the agency has already purported to do,” as petitioners
ask, this alleged injury would likely be redressed. Sierra Club
v. EPA, 699 F.3d 530, 533 (D.C. Cir. 2012).
Environmental petitioners’ challenge, however, fails on
the merits. Their primary argument is that, when EPA revises
emissions standards under section 112(d)(6), it must
recalculate the maximum achievable control technology in
accordance with sections 112(d)(2) and (d)(3). This argument,
although far better developed than the identical claim in
9
NRDC v. EPA, 529 F.3d 1077 (D.C. Cir. 2008), is barred by
that decision. There, we explained that section 112(d)(6)
could not “be construed reasonably as imposing” an
obligation on EPA “to completely recalculate the maximum
achievable control technology” when it revises standards
under that provision. Id. at 1084. Seeking to dismiss that
statement as dictum, environmental petitioners argue that the
NRDC panel had no occasion to decide the legal test
applicable to a section 112(d)(6) revision because EPA,
having found “no ‘significant developments in practices,
processes, and control technologies,’ ” never promulgated
revised standards in that rulemaking. Id. (quoting National
Emission Standards for Organic Hazardous Air Pollutants
From the Synthetic Organic Chemical Manufacturing
Industry, 71 Fed. Reg. 76,603, 76,605 (Dec. 21, 2006)). But
the panel rested its decision on two independent conclusions:
that section 112(d)(6) imposes no obligation to recalculate the
MACT and that “[e]ven if the statute did impose such an
obligation, petitioners have not identified any post-1994
technological innovations that EPA has overlooked.” Id.
Where, as in that case, “there are two grounds, upon either of
which an appellate court may rest its decision, and it adopts
both, ‘the ruling on neither is obiter [dictum], but each is the
judgment of the court, and of equal validity with the other.’ ”
United States v. Title Insurance & Trust Co., 265 U.S. 472,
486 (1924) (quoting Union Pacific Railroad Co. v. Mason
City & Fort Dodge Railroad Co., 199 U.S. 160, 166 (1905)).
Environmental petitioners next argue that EPA
impermissibly considered cost in revising emissions standards
under section 112(d)(6). But the statute only bars cost
consideration in setting MACT floors under section 112(d)(3),
see National Lime, 233 F.3d at 640; section 112(d)(2) in
contrast expressly directs EPA to consider costs when setting
beyond-the-floor standards, see 42 U.S.C. § 7412(d)(2)
10
(directing the Administrator to “tak[e] into consideration the
cost of achieving . . . emission reduction”). Petitioners are
correct that section 112(d)(6) itself makes no reference to cost
and that the Supreme Court has “refused to find implicit in
ambiguous sections of the [Clean Air Act] an authorization to
consider costs that has elsewhere, and so often, been
expressly granted.” Whitman v. American Trucking
Associations, Inc., 531 U.S. 457, 467 (2001). But given that
EPA has no obligation to recalculate the MACT floor when
revising standards, see supra at 8–9, and given that section
112(d)(2) expressly authorizes cost consideration in other
aspects of the standard-setting process, we believe this clear
statement rule is satisfied.
Finally, environmental petitioners have failed to show
that EPA acted arbitrarily and capriciously when it decided
not to impose more stringent emissions standards based on
certain technological developments—namely, high efficiency
particulate air (“HEPA”) filters and wet electrostatic
precipitators (“WESP”). EPA reasonably explained that
further reductions were unwarranted due to concerns about
the feasibility, utility, cost-effectiveness, and adverse
collateral environmental impacts associated with this
technology, and petitioners point to no “clear error of
judgment” reflected in this reasoning. Defenders of Wildlife v.
Salazar, 651 F.3d 112, 116 (D.C. Cir. 2011).
IV.
With the exception of RSR’s challenge to the CEMS
requirement, which we reject for the same reasons as industry
petitioners’ identical claim, see supra at 6, RSR challenges
only EPA’s failure to require that more stringent standards be
imposed on the company’s competitors. According to industry
intervenors, RSR lacks prudential standing to bring those
claims. See In re Vitamins Antitrust Class Actions, 215 F.3d
11
26, 29 (D.C. Cir. 2000) (explaining that potential intervenors
must demonstrate prudential standing). Because this Circuit
treats prudential standing as “a jurisdictional issue which
cannot be waived or conceded,” Animal Legal Defense Fund,
Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994); see also
Grocery Manufacturers Association v. EPA, 693 F.3d 169,
174, 179 (D.C. Cir. 2012), we must consider this argument
even though it was raised only by industry intervenors, see
U.S. Telephone Association v. FCC, 188 F.3d 521, 531 (D.C.
Cir. 1999) (explaining the general “rule against consideration
of issues raised by intervenors and not by petitioners”). Under
our case law, RSR lacks prudential standing because an
industry group’s interest in “increasing the regulatory burden
on others” falls outside the “zone of interests” protected by
the Clean Air Act. Cement Kiln, 255 F.3d at 870–71. RSR
nonetheless insists that it has prudential standing because it
“is regulated by the very standards it is challenging.” RSR
Petitioner-Intervenor Reply Br. 5. But apart from the CEMS
requirement, RSR objects not to any regulatory burden
imposed on it but instead to the absence of regulatory burdens
imposed on its competitors.
V.
For the foregoing reasons, the petitions for review are
denied in part and dismissed in part.
So ordered.
SILBERMAN, Senior Circuit Judge, concurring: I concur
fully in the Court’s opinion. I write separately to explain more
completely why it is appropriate for us to hold that intervenor
RSR Corporation lacks prudential standing.
Though RSR is in the unusual position of intervening as
both a petitioner and respondent, nearly all of its substantive
arguments overlap with those made by the environmental
petitioners. But unlike the environmental petitioners, RSR’s
only interest in this dispute is increasing the regulatory burden
on its competitors, and as the Court explains, Op. at 10-11, it is
well-established that such an interest does not suffice to show
prudential standing. Cement Kiln Recycling Coal. v. EPA, 255
F.3d 855, 871 (D.C. Cir. 2001).
The EPA has not itself argued that RSR lacks prudential
standing, and while the industry group has raised the issue, they
did so only in their brief as respondent-intervenors, not as
petitioners. The general rule in this circuit is that “[i]ntervenors
may only argue issues that have been raised by the principal
parties.” Nat’l Ass’n of Regulatory Util. Comm’rs v. ICC, 41
F.3d 721, 729 (D.C. Cir. 1994). Were our consideration of
prudential standing dependent on the parties themselves having
raised this issue, we might face the thorny question of how to
apply our general rule where an issue is raised by the same
entity that is a party, but only in that entity’s separate capacity
as intervenor.
We were not required to address that question here,
however, because we treat prudential standing as a jurisdictional
limit that cannot be waived. See Grocery Mfrs. Ass’n v. EPA,
693 F.3d 169, 174, 179 (D.C. Cir. 2012) (considering prudential
standing where not raised by the parties);1 Animal Legal Def.
1
The industry group characterizes the rule from Grocery
Manufacturers as stating that “[t]his Court considers prudential
standing arguments raised by Respondent-Intervenors, even where
2
Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994)
(“Standing, whether constitutional or prudential, is a
jurisdictional issue which cannot be waived or conceded.”).
That would normally be the end of the matter, except that the
validity of our precedent on this point was recently called into
question by a thoughtful dissent in Grocery Manufacturers. See
693 F.3d at 183-85 (Kavanaugh, J., dissenting).
Judge Kavanaugh acknowledged that “older cases from this
Court said that prudential standing was jurisdictional.” Id. at
185 n.4 (citing Animal Legal Def. Fund, 29 F.3d at 723 n.2); see
also Steffan v. Perry, 41 F.3d 677, 697 (D.C. Cir. 1994) (en
banc). But he argued that these decisions were inconsistent with
more recent Supreme Court decisions that have “significantly
tightened and focused the analysis governing when a statutory
requirement is jurisdictional.” Grocery Mfrs., 693 F.3d at 183-
84 (Kavanaugh, J., dissenting) (citing Reed Elsevier, Inc. v.
Muchnick, 130 S. Ct. 1237, 1243 (2010)). He further observed
that other circuits have found prudential standing to be non-
jurisdictional (and therefore waivable), id. at 184-85 (collecting
cases), and he also cited post-1994 cases in this circuit at least
suggesting that prudential standing is not jurisdictional, id. at
185 n.4 (collecting cases).
[respondent] does not raise the objection.” But Grocery Manufacturers
does not say that prudential standing has any special relationship to
the rule about arguments raised only by intervenors. Rather, it stands
for the general principle that the zone-of-interests test is jurisdictional,
and therefore must be considered by the court even when not raised by
the parties.
3
But a majority2 of the Grocery Manufacturers panel
concluded that one of the petitioners in that case lacked
prudential standing (even though the EPA had not raised the
issue), and a petition for rehearing en banc was subsequently
denied — without any published rebuttal from active judges to
Judge Kavanaugh’s dissent from the order denying rehearing.
704 F.3d 1005 (D.C. Cir. 2013).
I take this opportunity to respond. First, it should be noted
that the term “prudential standing” is a misnomer — at least in
the context of whether a plaintiff (or petitioner) in an APA cause
of action is within the “zone of interests” of the relevant
substantive statute. There are other kinds of standing issues, like
third-party standing, that do spring from concepts of
jurisdictional prudence. See Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 804 (1985). But as the Supreme Court has
recognized, what is involved in the zone-of-interest analysis is
more properly described as “statutory standing.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 92, 97 (1998).
That characterization is sensible because this test — unlike
other prudential standing inquiries — is a gloss on the APA’s
right of review for “[a] person . . . adversely affected or
aggrieved by agency action within the meaning of a relevant
statute.” 5 U.S.C. § 702. See Air Courier Conference of Am. v.
Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 523-24
(1991) (“[T]he plaintiff must establish that the injury he
2
Judge Tatel, writing separately, noted his agreement with those
other circuits that found prudential standing non-jurisdictional, but
also stated that “[t]his Circuit . . . has directly held to the contrary,”
and found that the language in Supreme Court decisions collected by
the dissent was insufficient “to permit this panel to depart from our
clear prior holdings.” Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 180
(D.C. Cir. 2012) (Tatel, J., concurring).
4
complains of (his aggrievement, or the adverse effect upon him),
falls within the ‘zone of interests’ sought to be protected by the
statutory provision whose violation forms the legal basis for his
complaint.” (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 883 (1990)) (internal quotation marks omitted)); Ass’n of
Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153-
54 (1970) (connecting the zone-of-interests concept to the
specific language of the APA). This particular type of
prudential standing is thus typically tied to at least two statutes
— the organic statute underlying a complaint and the APA
itself.3
The question of whether a plaintiff has statutory standing
therefore depends on Congressional intent — does Congress
intend that this particular class of persons have a right to sue
under this substantive statute? In that respect, statutory standing
is similar to subject-matter jurisdiction, and this Court has even
described it as such in a past case. See Mallick v. Int’l Bhd. of
Elec. Workers, 749 F.2d 771, 772 n.1 (D.C. Cir. 1984) (finding
that the plaintiff fell within the zone of interests, and therefore
that “we have subject matter jurisdiction to decide this case”).
In one instance, Congress is implicitly deciding who can sue,
and in the other, what kind of cases can be brought. And of
3
I recognize that the Supreme Court has applied the zone-of-
interests test to at least one non-statutory cause of action. See Bos.
Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320 (1977) (noting
that plaintiffs “suffer[ed] an actual injury within the zone of interests
protected by the Commerce Clause”). Perhaps the test is of a more
prudential character in the constitutional context, or perhaps that
decision was simply anomalous. Either way, when the zone-of-
interests is applied for statutory causes of action (as is almost always
the case), then it may properly be characterized as a question of
statutory standing, for the reasons given above.
5
course, in both situations (unlike with Article III barriers)
Congress can always change the law.
The significance as to whether statutory standing is labeled
jurisdictional relates to two other questions. First, is a court
obliged to consider statutory standing where the parties have not
raised it, and second, can a court rely on statutory standing prior
to consideration of an Article III issue? As to the first question,
Supreme Court case law is unclear. But on the second question
— the order in which issues may be considered — the Court has
treated statutory standing like other jurisdictional thresholds.
Normally a federal court must confront an Article III question
at the outset of a case, but the Supreme Court has noted that a
federal court may decide a statutory standing issue before
reaching an Article III question, as would be true of a subject-
matter jurisdiction issue. Steel Co., 523 U.S. at 97 n.2
(defending the proposition that “a statutory standing question
can be given priority over an Article III question”); see also
Block v. Cmty. Nutrition Inst., 467 U.S. 340, 353 n.4 (1984)
(analyzing the interrelated concepts of preclusion of judicial
review and statutory standing); Grand Council of the Crees (of
Quebec) v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000) (“[I]t is
entirely proper to consider whether there is prudential standing
while leaving the question of constitutional standing in doubt, as
there is no mandated ‘sequencing of jurisdictional issues.’”
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584
(1999))). That suggests that the Court sees statutory standing as
different from other species of what is generally called
prudential standing — indeed having a characteristic of a
jurisdictional issue.4
4
To be sure, Steel Co. indicates that a merits question could be
decided before a statutory standing issue because they are interrelated
(i.e, is the plaintiff arguably within its zone of interest?), 523 U.S. at
97 n.2 (discussing “[t]he reasons for allowing merits questions to be
6
The Supreme Court has made statements in dicta that would
appear to limit jurisdictional issues (besides Article III) to
subject-matter and personal jurisdiction. See, e.g., Reed
Elsevier, 130 S. Ct. at 1243 (“[T]he term ‘jurisdictional’
properly applies only to ‘prescriptions delineating the classes of
cases (subject-matter jurisdiction) and the persons (personal
jurisdiction)’ implicating [a court’s adjudicatory] authority.”
(quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004))). But the
Court has never specifically held that prudential standing —
much less statutory standing — is non-jurisdictional. Id.5
Most of the Courts of Appeals that have held prudential
standing non-jurisdictional concerned only third-party standing,
which really is a judge-made concept. See Bd. of Miss. Levee
Comm’rs v. EPA, 674 F.3d 409, 417 (5th Cir. 2012) (treating as
waived the EPA’s argument that “the Board seeks to assert the
legal rights of the Corps”); Rawoof v. Texor Petroleum Co., 521
F.3d 750, 756 (7th Cir. 2008) (discussing the
“prudential-standing limitation . . . principle that a litigant
cannot sue in federal court to enforce the rights of third
parties”); Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d
1050, 1065 n.17 (9th Cir. 2008) (citing Bd. of Natural Res. v.
Brown, 992 F.2d 937, 945-46 (9th Cir. 1993) (“[T]he rule
against third-party standing is not a jurisdictional limitation on
our review, but a prudential one.”)) (noting only that the state
agency had “fail[ed] to articulate any argument challenging
ILC’s prudential standing”).
decided before statutory standing questions”). But that situation only
occurs when the court dismisses a case on the merits.
5
To confuse matters furthers, consider that personal jurisdiction
— unlike Article III standing or subject-matter jurisdiction — may be
waived. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 703 (1982).
7
As far as I am aware, only two courts have held specifically
that the zone-of-interests test is non-jurisdictional, and they did
not recognize or discuss any difference between statutory
standing and prudential standing generally. See Finstuen v.
Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007) (“Prudential
standing requires, among other things, that ‘a plaintiff’s
grievance . . . arguably fall[s] within the zone of interests
protected or regulated by the statutory provision . . . invoked in
the suit.’” (quoting Bd. of Cnty. Comm’rs v. Geringer, 297 F.3d
1108, 1112 (10th Cir. 2002))); Gilda Indus., Inc. v. United
States, 446 F.3d 1271, 1280 (Fed. Cir. 2006) (“[W]e do not need
to reach or decide the question whether Gilda satisfies the
standing requirements of the Administrative Procedure Act,
because the government did not contend in its brief that Gilda’s
complaint should be barred by the zone of interests test.”).
In light of this confusing tangle of jurisprudential concepts
— and especially in light of the apparent differences between
statutory standing and other species of prudential standing — I
think we ought to be especially hesitant to overturn past
precedent on these issues until the Supreme Court has provided
clear guidance.
In any event, even if we were not required to consider
statutory standing sua sponte, we would still have the authority
to do so under U.S. National Bank of Oregon v. Independent
Insurance Agents of America, Inc., 508 U.S. 439, 447 (1993)
(“[A] court may consider an issue ‘antecedent to . . . and
ultimately dispositive of’ the dispute before it, even an issue the
parties fail to identify and brief.” (quoting Arcadia v. Ohio
Power Co., 498 U.S. 73, 77 (1990))). Indeed, we relied on this
very case as authority to decide a statutory standing issue that
was purportedly waived in Animal Legal Defense Fund, Inc. v.
Espy, 23 F.3d 496, 499 (D.C. Cir. 1994). So whether or not
statutory standing remains a jurisdictional concept, there is
8
nothing improper about raising the issue ourselves where the
parties do not.6
Finally, it is worth noting that this question — whether
prudential standing should be raised by a federal court sua
sponte — typically arises when the government neglects to raise
the issue, which might be thought a rare occasion of litigation
lapse. However, in both this case and Grocery Manufacturers,
the Justice Department failed to do so, and in both cases, the
government’s position was defended by the Environmental
Division. It would seem that this division — perhaps reflecting
the political views of its major “client” (the EPA) — declines to
raise standing issues available as a defense. That practice has
led to some dramatic contrasts between positions taken by the
Civil Division and the Environmental Division. Indeed, in one
case some years ago, a lawyer for the Environmental Division
fainted during oral argument while attempting to explain a
different position on standing than one argued a few days before
by a Civil Division lawyer.
The justification for the Justice Department’s control over
all executive branch litigation — a control that I, as a judge,
think is even more important than I once thought as a Justice
Department official — depends on its ability to ensure
6
Prudential standing might therefore stand on the same footing
as prudential ripeness. The Supreme Court has indicated that
“ripeness doctrine is drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to exercise
jurisdiction.” Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n.18
(1993). Though the Court has indicated that prudential ripeness may
be waived, Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct.
1758, 1767 n.2, it has also held that “even in a case raising only
prudential concerns, the question of ripeness may be considered on a
court’s own motion.” Nat’l Park Hospitality Ass’n v. Dep’t of the
Interior, 538 U.S. 803, 808 (2003).
9
uniformity and sophistication in government litigation. It hardly
serves that end to allow one division of the Justice Department
to subordinate a government-wide litigation interest to the
desires of one agency.