A briefing on the petition for certiorari in Grocery Manufacturers Association, et al. v. Environmental Protection Agency, et al., S. Ct. No. 12-1055, was distributed on June 4 to the Supreme Court justices for consideration at their June 20 conference, which is the final conference for the October 2012 term.  A petition for certiorari is a document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court.

The National Chicken Council, eight other associations from the food-production industry, and the American Petroleum Institute (API) petitioned the Supreme Court in February to review the D.C. Circuit’s dismissal of their challenge to the Environmental Protection Agency’s (EPA’s) “E15” partial waiver decision.  That decision permits the use of E15, a fuel blend that includes 50 percent more ethanol than currently available gasoline, as transportation fuel in post-2000 light-duty motor vehicles. 

The D.C. Circuit concluded that none of the 17 petitioners from the food-production, petroleum, or engine-products industries had demonstrated that they had standing to challenge EPA’s decision.  The D.C. Circuit therefore dismissed the case for lack of jurisdiction.  The standing doctrine requires a party challenging agency action to first demonstrate that it has a sufficient stake in the outcome of the case—for example, that it will be harmed by the agency action—before the court will consider the merits of the party’s challenge.

Three groups separately petitioned the Supreme Court to take the D.C. Circuit’s decision up on review in order to clarify the requirements for standing in agency-review cases.  In addition to NCC, the other food-production groups, and API, the four engine-products petitioners separately petitioned for certiorari, as did the remaining three petroleum petitioners.

Both EPA and the private sponsor of E15, Growth Energy, opposed these petitions.  They argued that the Supreme Court should not review the case because the D.C. Circuit’s decision is fact-driven and case-specific.  In other words, because the decision was limited to the particular circumstances of EPA’s E15 decision, it supposedly is not a case of national importance that warrants the Supreme Court’s review.

In reply, NCC and the other petitioners explained that the D.C. Circuit’s decision is a case of national importance because it severely limits the ability of industries to challenge agency decisions that affect them.  Moreover, the groups pointed out, the wide variety of entities and organizations that have filed “amicus” briefs supporting the certiorari petitions is clear evidence of the national importance of the case.  These “amicus” brief filers included the States of Alabama and Oklahoma, the Commonwealth of Virginia, the Chamber of Commerce, the Business Roundtable, the NFIB Small Business Legal Center, the National Association of Home Builders, the National Automobile Dealers Association, and Public Citizen.

The Supreme Court will consider whether to take the E15 case up on review on June 20.  Its decision whether to review the case will be published on the Supreme Court’s website either on Friday, June 21 or Monday, June 24.