Association of Battery Recyclers, Inc. v. Environmental Protection Agency , 716 F.3d 667 ( 2013 )


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  •  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.
    

Document Info

Docket Number: 12-1129, 12-1130, 12-1134, 12-1135

Citation Numbers: 405 U.S. App. D.C. 100, 716 F.3d 667

Judges: Per Curiam, Sentelle, Silberman, Tatel

Filed Date: 5/28/2013

Precedential Status: Precedential

Modified Date: 8/6/2023

Authorities (45)

Board of County Commissioners v. Geringer , 297 F.3d 1108 ( 2002 )

Finstuen v. Crutcher , 496 F.3d 1139 ( 2007 )

Rawoof v. Texor Petroleum Co., Inc. , 521 F.3d 750 ( 2008 )

Board of Mississippi Levee Commissioners v. United States ... , 674 F.3d 409 ( 2012 )

Independent Living Center of Southern California, Inc. v. ... , 543 F.3d 1050 ( 2008 )

board-of-natural-resources-of-the-state-of-washington-and-washington-state , 992 F.2d 937 ( 1993 )

Sierra Club v. EPA , 353 F.3d 976 ( 2004 )

Nat Resrc Def Cncl v. EPA , 489 F.3d 1364 ( 2007 )

Grand Council of the Crees v. Federal Energy Regulatory ... , 198 F.3d 950 ( 2000 )

Animal Legal Defense Fund, Inc. v. Mike Espy, Secretary, ... , 29 F.3d 720 ( 1994 )

National Lime Ass'n v. Environmental Protection Agency , 233 F.3d 625 ( 2000 )

John Mallick v. International Brotherhood of Electrical ... , 749 F.2d 771 ( 1984 )

United States Telephone Association v. Federal ... , 188 F.3d 521 ( 1999 )

national-association-of-regulatory-utility-commissioners-illinois-commerce , 41 F.3d 721 ( 1994 )

Defenders of Wildlife v. Salazar , 651 F.3d 112 ( 2011 )

Animal Legal Defense Fund, Inc. v. Mike Espy, in His ... , 23 F.3d 496 ( 1994 )

Cement Kiln Recycling Coalition v. Environmental Protection ... , 255 F.3d 855 ( 2001 )

Intl Brhd Elec 702 v. NLRB , 215 F.3d 11 ( 2000 )

Joseph C. Steffan v. William J. Perry, Secretary of Defense , 41 F.3d 677 ( 1994 )

Natural Resources Defense Council v. Environmental ... , 529 F.3d 1077 ( 2008 )

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