The National Chicken Council (NCC) and other coalition organizations on September 28 filed a petition for rehearing and rehearing en banc of the D.C. Circuit’s decision to dismiss for lack of jurisdiction challenge to two “partial waiver” decisions by the Environmental Protection Agency (EPA).  These EPA decisions allowed a 50 percent increase in the amount of ethanol that may be blended into transportation fuel for use in cars  and light-duty trucks of model years 2001 or newer.

The coalition of petitioners from the food production, petroleum, and automotive industries had argued before the three-judge panel that EPA’s action was contrary to the Clean Air Act because it allowed for a partial waiver of the increased-ethanol blend for only certain models of cars; not a complete waiver as required by the statute.  The petition also explained that, because the increase in permitted ethanol would result in an increase in the amount of corn that was diverted from food to fuel, corn prices would go up, thus harming NCC’s members and others in animal and food production.  Two members of the panel concluded that “food” petitioners who challenged EPA’s decision had demonstrated that they were harmed by the decision.  But, a different majority concluded that the food petitioners were, nevertheless, not within the “zone of interests” protected by the Clean Air Act and, thus, lacked prudential standing to challenge E15’s partial wavier.

In the September 28 petition, the food petitioners, joined also by the American Petroleum Institute (API), asked the D.C. Circuit as a whole to rehear the case.   The petition sets forth three grounds for rehearing.  First, it argues that prudential standing is not a jurisdictional doctrine and that, because EPA failed to challenge any petitioners’ standing here, the issue was waived.  Second, even if prudential standing is jurisdictional, the food petitioners fell within the relevant “zone of interests” of the Clean Air Act’s statutory scheme regulating fuels.  Third, the petition includes a challenge specific to API; namely, that the majority’s conclusion that API lacked constitutional standing is inconsistent with prior decisions from the D.C. Circuit.

Legal counsel for NCC and other petitioners believe the new petition offers strong grounds for rehearing.  Counsel also noted that further review at this point is discretionary, so the D.C. Circuit has the discretion to grant or deny the petition.  A majority of the active judges must agree to do so.  The next step is to see whether the court requests a response from EPA.  If it does not do so, then no response will be filed, and the petition will likely be denied.  If the court requests a response, the chances are higher that the court will grant rehearing, but still not certain.