On Friday, January 9, 2015, the D.C. Circuit heard our challenges to the greenhouse gas emissions standards for new trucks and cars. The challenges were based on EPA’s failure to submit to the Science Advisory Board for peer review the Truck Rule and the separate Car Rule limiting greenhouse gas emissions. We argued that submittal to the Board is a nondiscretionary statutory mandate applicable to all EPA rules, and that EPA’s failure to comply with the mandate requires the Truck Rule and Car Rule to be remanded and vacated, so that the Agency can reopen the administrative record to seek review from the Board.
The three-judge panel of Tatel, Ginsburg, and Edwards did not concentrate on the substantive issue of whether EPA failed to comply with the statutory requirement. Rather, they spent the bulk of the hearing asking questions regarding whether the Petitioners had standing to bring the actions. Standing is a Constitutional requirement, which forbids federal courts from hearing cases unless there is a bona fide controversy between parties to a lawsuit. The purpose of the standing requirement is to ensure that the courts do not engage in resolving philosophical or abstract questions.
For the purposes of our cases, the standing requirement has three components: (1) the petitioners must be injured-in-fact by the Truck Rule or Car Rule, as the case may be; (2) the injuries must be caused by the rules; and (3) the Court is able to grant relief that will remove or reduce the injuries. It is difficult to predict how any particular court will decide any pending issue, but the D.C. Circuit panel seemed to side with us on the injury-in-fact and causation issues, concentrating most of their questions on the redressability issue. It comes down to this: whether vacating and remanding the EPA Truck Rule and Car Rule will help to ameliorate the injuries in light of similar California rules and the federal fuel economy standards promulgated by the National Highway Traffic Safety Administration. Citing Supreme Court precedent, we argued that the Petitioners’ injuries are redressable because a favorable decision would remove at least one regulatory cause of the injuries. There is no requirement that all causes of the injury be removed.
If the panel rules in our favor on the standing question, it will be required to address the substantive issue of whether EPA’s violation of the submittal requirement merits remand and vacatur of the two rules. We expect a decision before the end of the year.