Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Dissenting opinion filed by Circuit Judge SCALIA.
HARRY T. EDWARDS, Circuit Judge:
The National Highway Traffic Safety Administration ("NHTSA") is required to set mandatory fuel economy standards for passenger cars and light trucks pursuant to the Energy Policy and Conservation Act of 1975 ("EPCA").
The petitioners, four non-profit consumer organizations that work to promote energy conservation,
As a threshold matter, the petitioners plainly have standing to bring this action in a representative capacity for members of their organizations. Their members have suffered injury-in-fact because the vehicles available for purchase will likely be less fuel efficient than if the fuel economy standards were more demanding. This injury can be traced to NHTSA's rulemaking and is likely to be redressed by a favorable decision. Thus, all of Article III's requirements for standing are met.
The Government argues that the petitioners' concerns are not injuries, but merely "generalized grievances" and, as such, cannot be considered by this court. The Government's argument reveals a fundamental confusion between the prudential principle that courts generally "refrain from adjudicating `abstract questions of wide public significance' ... most appropriately addressed in the representative branches"
Generally, under EPCA, judicial review of agency action establishing Corporate Average Fuel Economy ("CAFE") standards may be sought by "[a]ny person who may be adversely affected by" the promulgation of any such rule.
On the merits, it must be concluded that EPCA permits NHTSA to consider consumer demand in setting fuel economy standards, and that the agency has reasonably balanced the competing policies of the statute in the rulemakings at issue. The petition for review must therefore be denied.
A. Statutory Framework
In the wake of the 1973-1974 Arab oil embargo, Congress enacted EPCA with the purpose of enhancing the supply of fossil fuels in the United States through increased production and energy conservation programs.
The CAFE standards set a minimum performance requirement in terms of an average number of miles a vehicle travels per gallon of gasoline or diesel fuel. Individual vehicles and models are not required to meet the mileage standard; rather, each manufacturer must achieve an average level of fuel economy for all specified vehicles manufactured in a given model year.
Section 502(b) of the Act directs the Secretary of DOT ("Secretary") to prescribe, by rule, standards for light trucks.
The Secretary may amend the standard, but amendments must also require the "maximum feasible average fuel economy level."
At the end of each model year, the Environmental Protection Agency ("EPA") calculates the fuel economy level each manufacturer has achieved based on the fuel economy of each model and the number of vehicles manufactured in each model line.
Finally, the Act provides for judicial review initiated by "[a]ny person who may be
B. Rulemaking Proceedings
For the model years at issue here, NHTSA issued separate standards for four-wheel drive and two-wheel drive light trucks.
1. The Standard for Model Year 1985
In 1980, NHTSA set the light truck combined CAFE standards for 1984 and 1985 at 20.0 mpg and 21.0 mpg, respectively.
In November 1983, Ford petitioned NHTSA to lower the light truck CAFE standards for model years 1984 and 1985 by carrying the 1983 standards over to 1984 and carrying the 1984 standards over to 1985. This amendment would have lowered the combined light truck standards by 1 mpg each year to 19 mpg and 20 mpg for 1984 and 1985, respectively. Ford argued that a change in the standards was necessary due to changes in the "price of fuel, the attendant consumer reaction to falling fuel prices and stable fuel availability, and
In response to Ford's request, NHTSA published a Notice of Proposed Rulemaking on the 1984 and 1985 light truck standards in May 1984. The agency proposed to deny Ford's requested weakening of the 1984 standards because the model year was already underway.
In October 1984, NHTSA issued a final rule adopting Ford's proposed amendments for 1985.
As in its original formulation of the 1985 model year standards, the agency based the new industry standard primarily on Ford's maximum fuel economy capability. In support of this decision, NHTSA reiterated its view that it has a responsibility to set standards at a level that can be achieved by a manufacturer with a substantial share of the market.
2. The Standards for Model Years 1986-1987
In March 1984, NHTSA published a Notice of Proposed Rulemaking for light truck fuel economy standards for the 1986 and 1987 model years. Rather than proposing a specific standard, it suggested a range of 20.0 to 21.5 mpg for model year 1986 and 20.0 to 22.5 mpg for model year 1987.
Although NHTSA projected that Ford, again the least capable manufacturer, could achieve a maximum fuel economy level of 20.4 mpg in 1986, the agency set the combined standard at 20.0 mpg. To justify setting the standard below the levels that it predicted all of the manufacturers could achieve, NHTSA cited data submitted by Ford that indicated Ford's 1986 fuel economy could be as low as 19.6 mpg if consumers maintained a strong demand for larger vehicles. The agency also suggested that GM's planned engine improvements involved technological risks and might be unsuccessful. Finally, the agency relied on the imminence of the 1986 model year, which would prevent the manufacturers from instituting any major technological changes or new programs to compensate for market shifts, and on the decline in the manufacturers' ability to improve fuel economy due to market shifts.
Petitioners Center for Auto Safety and Environmental Policy Institute filed timely petitions for reconsideration with NHTSA. Both petitions challenged NHTSA's reliance on consumer demand as a major factor in setting CAFE standards, which they argue undercuts EPCA's goal of energy conservation. They further alleged that technology permitted greater fuel savings and that the statutorily required "maximum feasible" level of fuel economy is higher than the standard produced by accommodating Ford's capabilities, a practice they dubbed the "lowest common denominator" approach. They urged the agency to require marketing strategies to shift demand and advocated the imposition of penalties, rather than the lowering of standards, when manufacturers fail to comply with the standards. NHTSA denied the petitions for reconsideration
The Center for Auto Safety, Public Citizen and Union of Concerned Scientists claim standing to file a petition for judicial review of the CAFE standards based on the standing of their members, whom these organizations seek to represent in this action.
It is undisputed that the petitioner organizations satisfy the second and third prongs of this test. They seek to protect their members' interests in the widest possible choice of the most fuel-efficient vehicles that can be manufactured. These interests are germane to the organizations' purposes, which include promoting energy conservation and the availability of fuel-efficient vehicles. In addition, there is no reason to require individual members of any of the organizations to participate in this case.
Thus, the crux of the standing issue appears to be whether the members of the
A. Constitutional Requirements
In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,
The prevailing case law teaches that the first prong of the Article III standing requirements — injury-in-fact — is satisfied by the presence of a "distinct and palpable injury."
The Government argues that the petitioners' members will not be injured in this fashion. They maintain that the most fuel-efficient vehicles possible are already being manufactured and that, because it is the average fuel economy of a manufacturer's fleet that must meet the standards, rather than that of each individual car, the agency's action does nothing to reduce the range of vehicles or options available for purchase. This position is belied by the record, especially with respect to the capabilities of Ford to install additional technology and adjust their engines to achieve greater fuel economy.
For example, one reason cited by NHTSA to support lowering its projections of Ford's fuel economy achievements is that Ford adjusted the engine performance of its light trucks in a way which lowered the fuel economy of the vehicles.
In addition, the problem is not limited to the fact that Ford lags technologically. By tailoring the standards to Ford's capabilities and setting them below the levels projected for GM and Chrysler,
The Government also argues that the manufacturers establish their designs for a given model year so far in advance that lowering the 1985 requirement at the start of the model year and setting the 1986 standards only a year before the start of that model year will have no deleterious effect on the technology available in the vehicles. This argument completely overlooks the statutory scheme by which manufacturers earn credits for achieving fuel economy levels in excess of the standard. Because these credits can be carried forward for three years to offset penalties,
Finally, NHTSA seeks to have this court reject the petitioners' claims of injury as "generalized grievances" because so many people share in the injury. This argument
The question of how many suffer from an injury is logically unrelated to the question of whether there is an injury and has nothing to do at all with the fitness of a particular party to bring a claim. There is abundant precedent that makes it plain that the widespread nature of a harm is irrelevant to the Article III standing requirement of injury.
The petitioners in the instant case have alleged a distinct injury to their members. The only conceivable argument based on "generalized grievances" that NHTSA may advance relates to prudential principles. As will be shown in part B below, this so-called "prudential" concern in no way defeats standing in this case.
2. "Fairly Traceable and "Redressibility" Components
The "fairly traceable" and "redressibility" requirements for Article III standing ensure that the injury is caused by the challenged action and can be remedied by judicial relief.
NHTSA argues that the petitioners' claims are not redressible because this court's decision comes after the close of the 1985 model year and after the start of the 1986 model year. Because vehicle designs are determined far in advance of a model year, the agency contends that any decision would have no practical effect on the types of vehicles available. This argument has no merit whatsoever given the penalties that may be assessed, or the credits forgone, with a favorable decision from this court. As discussed above, EPCA's system of penalties, coupled with credits that can be carried forward or backward three years, serves to force manufacturers to make improvements in the future if they fail to make them in the present.
Moreover, in arguing that any remedy would come too late, the agency has confused mootness with standing. The standing inquiry is designed to determine if the party may appropriately assert a claim, while mootness is concerned with the appropriate timing of the claim. While the two concepts are related,
There is no difficulty in linking the petitioners' injury to the challenged agency action. NHTSA sets standards for the purpose of making vehicles more fuel-efficient, which are enforced by penalties levied on manufacturers who do not comply with the regulations. The petitioners, in turn, complain of less fuel-efficient vehicles. The object of the agency's regulation and the injury are thus directly linked. If setting a higher standard cannot result in vehicles with increased fuel efficiency, then the entire
B. Prudential Requirements
In addition to the constitutional minimum for standing imposed by Article III, the courts also have required plaintiffs to qualify under a set of prudential principles, recently summarized by the Supreme Court as follows:
The Government does not contend that the petitioners seek to represent third parties or that their claims fall outside the "zone of interests" protected by EPCA. Rather, NHTSA's objection centers on the second prudential requirement and it attempts to characterize the issues raised by the petitioners as "generalized grievances." This attempt is patently futile because, even if the petitioners' claims could be properly labeled as generalized grievances, Congress has eliminated all prudential limitations on standing to bring these claims.
It is plain that, unlike the Article III requirements, the prudential limitations on standing are subject to elimination by Congress.
Congress has frequently exercised this perogative, most commonly in statutes that involve civil rights, consumer issues or environmental interests.
The broad standing to challenge CAFE standards established by EPCA removes any necessity to limit judicial review for prudential reasons. Petitions for judicial review may be filed by "[a]ny person who may be adversely affected by any rule prescribed under section 2001, 2002, 2003 or 2006 of this title."
Congress' choice of the criterion "may be adversely affected" to determine standing for judicial review of CAFE standards places EPCA alongside numerous statutes employing similar language,
In many cases, courts have specifically interpreted such language as expanding standing to the limits of Article III and completely eliminating prudential inquiry. The premier example is provided by the Fair Housing Act of 1968, which gives standing to "[a]ny person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter `person aggrieved')."
EPCA clearly removes the judicial authority to create prudential barriers by granting review of agency action to those "who may be adversely affected." The injuries alleged by the petitioners certainly place them in that category. Members of Center for Auto Safety and the other petitioners are part of a group of vehicle owners who wish to buy fuel-efficient light trucks. Because the NHTSA standards injure their ability to do so, they are plainly "adversely affected."
Once Congress has extended standing to a broad group of petitioners, concerns for maintaining separation of powers should no longer restrain judicial review. It would make no sense to deny standing under a principle designed to prevent the courts from encroaching on the legislature's domain when Congress itself has already "weighed the need for and the value of judicial review of a given category of administrative decisions, and has decided it is warranted."
When Congress has conferred standing, it matters not one iota if a large number of people share the injury and would benefit from its redress. The courts may appropriately function as the guardians of majority interests, without weakening the separation of powers, when Congress has decided to grant them that role. Indeed, far from preserving the separation of powers, when Congress has spoken, the courts place themselves in conflict with the legislative branch if they ignore the statutory message.
In sum, it must be concluded that petitioners Center for Auto Safety, Public Citizen and Union of Concerned Scientists satisfy the constitutional requirements for standing. Because EPCA grants standing to a broad group of beneficiaries of the statute's programs to conserve fuel, the
A two step analysis is required in reviewing whether NHTSA gave impermissible weight to shifts in consumer demand in setting the 1985 and 1986 model year light truck CAFE standards. The first inquiry is "whether Congress has directly spoken to the precise question at issue."
Congress delegated the determination of fuel economy standards to the Secretary, who in turn assigned this task to NHTSA. On its face, the statute gives the agency discretion to designate the classes of light trucks subject to standards. It then requires the standards to be set at the "maximum feasible" level and outlines four general categories of factors to be considered in making that determination. Consumer demand is not specifically designated as a factor, but neither is it excluded from consideration; the factors of "technological feasibility" and "economic practicability" are each broad enough to encompass the concept. Thus, the unadorned language of the statute does not indicate a congressional intent concerning the precise objections raised by the petitioners.
The legislative history of EPCA is similarly unilluminating. Congress clearly contemplated that consumers would benefit from the flexibility accorded to the manufacturer by a system of fuel economy standards, which the Senate Report predicted "should result in a more diverse product mix and wide consumer choice."
The petitioners correctly observe that Congress rejected both the President's proposed energy program, which relied on market mechanisms to reduce demand as prices rose,
The petitioners also argue that the history of congressional action on the penalty provisions of the Act indicates that shifts in consumer demand cannot be a valid reason to set standards at lower levels. The Act contains two provisions originally included in both the House and Senate bills, which allow waiver of penalties to prevent insolvency or if non-compliance was due to an Act of God, strike or fire. A third reason for waiver — FTC certification of a substantial lessening of competition — was added by the Conference Committee from the Senate bill. However, a provision in the Senate bill that would have excused payment of penalties if the manufacturer could show that non-compliance "resulted from an unanticipated retail sales mix among different classes of automobiles or light duty trucks, as appropriate, manufactured by it and that such mix was beyond the control of the manufacturer"
This a fortiori argument rests on the plainly unfounded assumption that the rationales for waiving penalties and the factors to be applied in setting standards are identical. EPCA designates three specific circumstances in which penalties may be waived. Those precisely defined conditions are not at all congruent with the four general categories of factors that go into determining the "maximum feasible" level for a CAFE standard: technological feasibility, economic practicability, effects of other federal motor vehicle standards, and the need for energy conservation. Moreover, the standards and the penalty waivers serve profoundly different functions and hence do not stem from identical concerns. Standards have an industry-wide effect and must take account of industry-wide concerns. Penalty waivers, on the other hand, provide relief to a single manufacturer.
The agency's practice in the past is likewise not determinative of congressional intent. NHTSA and the intervenors argue that the agency has consistently relied on market demand as a factor in setting standards and that Congress was informed of this policy by annual reports and rulemakings,
It is axiomatic that Congress intended energy conservation to be a long term effort that would continue through temporary improvements in energy availability.
The agency concluded that if manufacturers had to restrict the availability of larger trucks and engines in order to adhere to CAFE standards, the effects "would go beyond the realm of `economic practicability' as contemplated in the Act."
The petitioners argue that NHTSA should not lower the standards in an effort to prevent the least capable manufacturer from falling into noncompliance and paying penalties, because the penalties are meant to provide incentives similar to those provided by a tax. They reason that manufacturers will have an incentive to install fuel-efficient equipment or pursue fuel-efficient developments if the cost is less than the penalty the manufacturers would otherwise incur. In addition, if manufacturers pass the cost of penalties on to consumers who purchase vehicles with low fuel efficiency, the penalties will act to shift consumer demand. The agency's "least common denominator" approach to standard setting removes these incentives.
This aspect of the challenge to the agency's interpretation of the role of EPCA's penalties has already been settled. In Center for Auto Safety v. Claybrook,
In short, while it may be disheartening to witness the erosion of fuel conservation measures in the face of changes in consumer priorities, this court is nonetheless compelled to uphold the agency's standards. They are the result of a balancing process specifically committed to the agency by Congress, and, in this case, the weight given to consumer demand was not outside the range permitted by EPCA.
It is clear that the petitioner organizations have standing to bring this suit in a representative capacity for their members. Their members have suffered an injury-infact, redressible by this court, which is due to the agency's action. The Government's challenge to petitioners' standing under the rubric of "generalized grievance" is inapposite; Congress removed this court's concern for such prudential principles by enacting a broad standing provision as a part of EPCA.
On the merits, however, it must be concluded that NHTSA's consideration of the adverse effects of consumer demand on the fuel economy levels manufacturers can achieve is permissible. Congress did not speak to this precise issue in enacting EPCA and, furthermore, it specifically delegated the process of setting light truck fuel economy standards with broad guidelines concerning the factors that the agency must consider. NHTSA has remained within the reasonable range permitted by those factors. Consequently, the petition for review is without merit.
SCALIA, Circuit Judge, dissenting in Nos. 85-1231 & 85-1348:
Compared to the remote and speculative injuries alleged as the basis for standing in these two cases, the harm rejected as a basis by the Supreme Court in its latest expression on the subject was positively imminent. It is impossible to reconcile our
Because the standing issues presented by the two cases are virtually identical, I discuss them both in this single dissent.
"Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 475-76, 102 S.Ct. 752, 760-61, 70 L.Ed.2d 700 (1982) (footnote omitted). The Supreme Court has set forth the following test for this prerequisite:
Id. at 472, 102 S.Ct. at 758 (footnote omitted). I think it abundantly clear that the Center for Auto Safety, Public Citizen, and the Union of Concerned Scientists have not passed this test.
Petitioners observe at the outset that they have filed other petitions against similar NHTSA actions, and that those petitions were not dismissed for lack of standing. See Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C.Cir.1985); Public Citizen v. Steed, 733 F.2d 93 (D.C.Cir.1984); Center for Auto Safety v. NHTSA, 710 F.2d 842 (D.C.Cir.1983); Center for Auto Safety v. Claybrook, 627 F.2d 346 (D.C.Cir.1980). In those cases, however, petitioners' standing was neither challenged by NHTSA nor discussed by the court. It is well established that cases in which jurisdiction is assumed sub silentio do not serve as binding authority for the proposition that jurisdiction exists. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984); Hagans v. Lavine, 415 U.S. 528, 535 n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974); United States v. More, 7 U.S. (3 Cranch) 159, 172, 2 L.Ed. 397 (1805) (Marshall, C.J.).
In addition, however, petitioners make a rather half-hearted effort to allege injury which they or their members will suffer unless this court grants them the requested relief. To satisfy Article III standing requirements, however, the asserted injury must be "distinct and palpable," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), "particular [and] concrete," United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 2946, 41 L.Ed.2d 678 (1974), and "specific [and] objective," Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972), rather than "conjectural [or] hypothetical," City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675
The petitioners' first allegation of injury rests on the following chain of hypotheses and predictions: NHTSA's anticipated delay in promulgation of future standards will make impossible the establishment of "maximum feasible" fuel-economy standards, because NHTSA must give manufacturers sufficient lead time if it wishes to set standards that require manufacturers to alter their production plans; the unlawfully low standards already promulgated, and those anticipated as a result of NHTSA's delay, have resulted and will result in increased sales of fuel-inefficient light trucks and decreased sales of fuel-efficient light trucks; such a sales pattern will result in increased gasoline consumption; increased gasoline consumption will lead to a reduction in the United States' energy reserves; and, finally, such a reduction will result in longer gasoline lines and a greater risk of gasoline rationing in the event that foreign oil supplies are interrupted. I think it apparent that this scenario, far from identifying a concrete threat of certainly imminent "specific future harm," Laird v. Tatum, 408 U.S. at 14, 92 S.Ct. at 2326, is nothing more than "an ingenious academic exercise in the conceivable," in which petitioners have merely "imagine[d] circumstances in which [they] could be affected by the agency's action." United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416-17, 37 L.Ed.2d 254 (1973) (emphasis added). See, e.g., Diamond v. Charles, 54 U.S.L.W. at 4422, 106 S.Ct. at 1705-07; City of Los Angeles v. Lyons, 461 U.S. at 105-10, 103 S.Ct. at 1666-70; O'Shea v. Littleton, 414 U.S. at 496-99, 94 S.Ct. at 676-78.
Petitioners also assert that they have standing as representatives of those of their members who wish to purchase the most fuel-efficient vehicles possible; that the current 1985 and 1986 standards do not achieve the maximum attainable levels of fuel economy; that NHTSA's failure to issue standards for 1989 and thereafter in a timely fashion will prevent the agency from imposing standards that achieve the maximum attainable levels of fuel economy; and that, as a consequence, the number of fuel-efficient light trucks and the range of fuel-efficient model options available to their members for purchase has been and will continue to be limited. But petitioners make no effort to identify any particular types of fuel-efficient light truck or any particular fuel-saving model options that their members desire but are or will be unable to purchase. Although it is as true of this court as of the Supreme Court that our standing cases have not exhibited "complete consistency," Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760, I think it clear that petitioners' bald assertion, unsupported by concrete factual allegations, that unidentified members of their organizations
In addition to failing to allege any injury sufficient to give them Article III standing, petitioners also have failed to establish that their members' alleged inability to purchase unidentified types of light trucks or light-truck model options is "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 38, 96 S.Ct. at 1924.
In No. 85-1348, petitioners allege that NHTSA's untimely issuance of the standards prevents the agency from imposing standards which require light-truck manufacturers to make substantial alterations in their production plans, because those plans must be made well in advance. But even if that is true, petitioners still must allege facts sufficient to demonstrate that in the event of timely issuance it would be substantially likely that their unidentified members' desires to purchase unspecified products would be satisfied. See Von Aulock v. Smith, 720 F.2d 176, 180 (D.C.Cir.1983); Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258, 261-66 (D.C.Cir.1980). This petitioners have utterly failed to do.
Even if I were inclined to attempt to remedy that failure — and I am not — petitioners' own arguments cast serious doubt on whether such a demonstration could ever be made. An order by this court compelling NHTSA to issue future standards in a timely fashion would remedy the injury alleged by petitioners only if (1) NHTSA were thereby enabled to issue standards significantly higher than those it could have issued had the standards been issued dilatorily; (2) manufacturers attempted to meet the lower standards rather than paying noncompliance fines; and (3) manufacturers chose to meet the lower standards by introducing light trucks or light-truck model options that would otherwise not have been available, rather than by, for example, merely selling relatively greater numbers of their already-existing fuel-efficient light trucks. Petitioners themselves make clear that each of these contingencies is nothing near to certain. As to the first, petitioners' briefs indicate their agreement with NHTSA's repeated observations that, because of the long lead times necessary for manufacturers to introduce new technology into their manufacturing processes, NHTSA has "only limited" opportunities to set standards which would require such innovation even when the standards are promulgated well over eighteen months prior to the beginning of the relevant model year. See Brief for Petitioners (No. 85-1348) at 12-13; Reply Brief for Petitioners (No. 85-1348) at 14-15. As to the second contingency, petitioners have noted in a slightly different context that when NHTSA sets a demanding standard, manufacturers can be expected to pay noncompliance fines (and perhaps to pass them through to customers) rather than take drastic measures to comply with the standard. See Brief for Petitioners (No. 85-1231) at 50-51; Reply Brief for Petitioners (No. 85-1231) at 11-15. Finally, as to the third contingency, petitioners forcefully contend that light-truck manufacturers have substantial ability to change the average fuel efficiency of their light-truck fleets merely by selling fewer fuel-inefficient light trucks and more fuel-efficient light trucks. See Brief for Petitioners (No. 85-1231) at 52-54.
In light of the doubt that surrounds each of its component links, and petitioners' failure to adduce any evidence as to those links, the chain of events that would have
In No. 85-1231, petitioners concede, as they must, that an order vacating the current standards for model years 1985 and 1986 and setting new standards of 21.0 miles per gallon for both model years (the relief petitioners request) "will have no effect" on the products available to their members in model year 1985 (which has ended) and "is unlikely to have much effect" on the products available in model year 1986 (which is approximately half over). Reply Brief for Petitioners (No. 85-1231) at 9-10. They nevertheless contend that retroactively setting higher standards for model years 1985 and 1986 will threaten manufacturers with civil penalties for their failure to comply with the higher standards. See 15 U.S.C. § 2008. Because penalties for inadequate past performance can be avoided by exceeding standards in future years, see 15 U.S.C. § 2002(l)(1)(B)(i), (l)(1)(C), (l)(3), petitioners conclude that manufacturers will likely introduce new technology that they otherwise might not have introduced, which technology will then become available to petitioners' fuel-conscious members.
The most obvious difficulty with this scenario is its premise. I think it apparent that NHTSA could not lawfully impose civil penalties on light-truck manufacturers who, although they complied with the standards for model years 1985 and 1986 during those model years, did not comply with a new, higher standard set after the model years were over and applied retroactively. See, e.g., Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156-57 (D.C.Cir.1986); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-37 (6th Cir.1978); Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). And even if one were to assume that NHTSA had such power, there is no substantial likelihood that the series of events petitioners have constructed will come to pass after petitioners are granted the relief they have requested. As has been remarked above, manufacturers might well react to the threat of civil penalties either by merely paying them or by altering the marketing of currently available products, rather than by installing the unidentified new technology petitioners' members allegedly desire to purchase.
* * * * * *
As far as can be discerned from the allegations of these plaintiffs, the question whether there is adequate reason for late issuance of light-truck fuel economy standards is of interest only to the society at large, and should be resolved through the political mechanisms by which that society acts. There is no basis for believing that these plaintiffs have suffered the personal hurt that alone justifies judicial interference with execution of the laws. I believe that the petition for review in No. 85-1231 and petition for a writ of mandamus in No. 85-1348 should be dismissed for lack of jurisdiction.
42 Fed.Reg. 63,184, 63,188 (1977).
In earlier model years, the standards were set at a level attainable by all manufacturers because of insufficient lead time for producers to make major new improvements. See 43 Fed.Reg. 11,995, 12,012 (1978) (1980-1981 model years); 42 Fed.Reg. 13,807, 13,808 (1977) (1979 model year).
Organizations have standing in their own right if they establish that the organization has suffered an injury-in-fact, i.e., a "concrete and demonstrable injury to the organization's activities." Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). EPI has failed to allege such an injury. However much the rulemaking may have reduced fuel conservation, damage to EPI's commitment to effective energy conservation is not sufficient for standing. See, e.g., Community Nutrition Institute v. Block, 698 F.2d 1239, 1253-54 (D.C.Cir.1983) (no organizational standing where petitioner alleges only that it has an interest in "seeing" that consumers receive dairy products at the lowest possible price; organization must allege that the regulation impedes it from assisting consumers to do so), reversed on other grounds, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). EPI would have standing only if it alleged injury to its activities. See Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937 (D.C.Cir.1986) (appellants "rest their claims on programmatic concerns, not on wholly speculative or purely ideological interests in the agency's action").
Finally, although EPI participated in the rulemaking at the agency level and filed a motion for reconsideration by NHTSA, that participation does not, in and of itself, satisfy judicial standing requirements. See Pittsburgh & West Virginia Ry. Co. v. United States, 281 U.S. 479, 486, 50 S.Ct. 378, 380, 74 L.Ed. 980 (1930); accord Chemehuevi Tribe of Indians v. FPC, 489 F.2d 1207, 1212 n. 12 (D.C.Cir.1973), vacated on other grounds, 420 U.S. 395, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975).
However, because the other petitioners have standing, EPI's lack of standing does not require dismissal of the case. See, e.g., Watt v. Energy Action Foundation, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981).
Moreover, the petitioners' failure to include this information in their petition for review can be excused in this case because the dispute on standing was completely unanticipated. The Government did not object to the standing of the Center for Auto Safety in their previous challenges to CAFE standards. See Center for Auto Safety v. NHTSA, 710 F.2d 842 (D.C.Cir.1983) (challenging NHTSA's withdrawal of an advance notice of a proposed rulemaking that sought information that would have been useful in setting automobile CAFE standards for model year 1985 and henceforth); Center for Auto Safety v. Claybrook, 627 F.2d 346 (D.C.Cir.1980) (challenging NHTSA's decision to exempt certain manufacturers from automobile CAFE standards). Nor has the Government challenged the petitioners' standing to request review of other NHTSA standards and of actions by the Department of Transportation. See Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C.Cir.1985) (bumper standards); Public Citizen v. Steed, 733 F.2d 93 (D.C.Cir.1984) (tire quality grading standards); Center for Auto Safety v. Lewis, 685 F.2d 656 (D.C.Cir.1982) (settlement of investigation of safety defect); Pacific Legal Found v. Department of Transportation, 593 F.2d 1338 (D.C.Cir.) (delayed implementation of requirement for air bags), cert. denied, 444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979); Nader v. Volpe, 466 F.2d 261 (D.C.Cir.1972) (elimination of requirement for passive restraint systems).
In addition, in Natural Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355 (D.C.Cir.1985), this court recently reached the merits, without any hint of standing difficulty, in a challenge to the Department of Energy's final rules determining that mandatory energy-efficiency standards were not justified for eight types of household appliances. These rules were promulgated pursuant to EPCA's energy conservation program for consumer products other than automobiles, and challenged by consumer groups and several states under the authority of 42 U.S.C. § 6306(b) (1982), which allows "[a]ny person who will be adversely affected by a rule prescribed under section 6293, 6294, or 6295 of this title when it is effective" to file a petition for review.
Ford's position is that it has made all the technological improvements that the agency projected in 1980. See 49 Fed.Reg. 22,516, 22,517 (1984). This argument, however, is irrelevant to the question of the petitioners' injury. If Ford has not incorporated all the technology possible, regardless of projections made five years previously, then a higher standard will lead to higher average fuel economy and the availability of vehicles that are more fuel-efficient.
1985 Final Technical Supplement at 18-19 (emphasis added).
Allen v. Wright, ___ U.S. ___, 104 S.Ct. 3315, 3326 n. 19, 82 L.Ed.2d 556 (1984) (quoting C. WRIGHT, LAW OF FEDERAL COURTS § 13, at 68 n. 43 (4th ed. 1983)).
In other cases, while not explicitly holding that Congress eliminated prudential inquiries, this court has interpreted generous statutory provisions to grant broad standing. See, e.g., Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1005 (D.C.Cir.1977) (provision of Marine Mammal Protection Act granting standing to "any party opposed to [an import] permit," 16 U.S.C. § 1374(d) (1982), applicable as well to challenge to waiver of moratorium on imports of baby seal-skins), cert. denied, 434 U.S. 1013 (1978); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814 & n. 26 (D.C.Cir.1975) ("any citizen" may bring an action against a pollutor under the Clean Air Act, 42 U.S.C. § 1857h-2 (1982)).
The original Senate bill required issuance of all amendments to the CAFE standards 18 months prior to the start of the model year at issue, while the final Act requires this lead time only if the standard is made more stringent by the amendment. Compare S. 1883, 94th Cong., 1st Sess. § 504(a)(6) (1975), reprinted in Senate Report, supra note 8, at 39, with 15 U.S.C. § 2002(f)(2) (1982). Ford argues that Congress added this more flexible ability to amend the standards as a substitute for the penalty waiver, in order to more effectively take industry-wide concerns into account.
The Automobile Importers of America and GM, on the other hand, suggest that Congress dropped the Senate bill's penalty waiver and retained the House bill's listing of factors to be considered in setting standards because it wanted to consider consumer demand "up front" in setting standards rather than after the end of the model year in waiving penalties.