United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2015 Decided July 14, 2015

No. 14-1123

ENERGY FUTURE COALITION, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND GINA 

MCCARTHY,

RESPONDENTS

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS AND 

AMERICAN PETROLEUM INSTITUTE,

INTERVENORS

On Petition for Review of Final Action of the 

United States Environmental Protection Agency

Adam R.F. Gustafson argued the cause for petitioners. 

With him on the briefs were C. Boyden Gray and Adam J. 

White.

Anna J. Wildeman and Valerie L. Green were on the brief 

for amicus curiae Governors’ Biofuels Coalition in support of 

petitioners.

Michael C. Augustini, Attorney, U.S. Department of 

Justice, argued the cause for respondents. With him on the 
2

brief were John C. Cruden, Assistant Attorney General, and 

Mark M. Kataoka, Attorney, U.S. Environmental Protection 

Agency.

Stacy R. Linden, Richard S. Moskowitz, Chet M. 

Thompson, Robert Meyers, and David Y. Chung were on the 

brief for intervenors American Fuel & Petrochemical 

Manufacturers and American Petroleum Institute in support of 

respondents.

Before: TATEL, KAVANAUGH, and PILLARD, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH.

KAVANAUGH, Circuit Judge: The goal of the Clean Air 

Act is “to protect and enhance the quality of the Nation’s air 

resources so as to promote the public health and welfare and 

the productive capacity of its population.” 42 U.S.C. 

§ 7401(b). To help achieve that objective, the Clean Air Act 

grants EPA authority to regulate vehicle emissions. As 

relevant here, EPA has adopted regulations that require 

vehicle manufacturers to test the emissions of new vehicles. 

Vehicle manufacturers must conduct emissions testing using a 

“test fuel.” 40 C.F.R. § 1065.701(a). And under the 

regulation at issue here, the test fuel must be a fuel that is 

“commercially available.” Id. § 1065.701(c). That regulation 

implements the statutory directive that “vehicles are tested 

under circumstances which reflect the actual current driving 

conditions under which motor vehicles are used, including 

conditions relating to fuel.” 42 U.S.C. § 7525(h). 
3

Petitioners in this case include several biofuel producers.

1

 

Petitioners want EPA to approve E30, which is a fuel that 

contains about 30% ethanol, for use as a test fuel. But 

according to petitioners, E30 is not yet “commercially 

available,” as required by EPA’s test fuel regulation.

In this suit, petitioners argue that the test fuel regulation 

is arbitrary and capricious. We disagree. We therefore deny 

the petition.

I

Before reaching the merits, we address several threshold 

arguments raised by EPA regarding the Court’s authority to 

decide the case. We reject each of those arguments.

First, petitioners have Article III standing to maintain this 

suit. They have suffered an injury in fact caused by EPA and 

redressable by the Court. See Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992). 

Several of the petitioners produce ethanol. Petitioners

want EPA to approve E30 as a test fuel. According to 

petitioners, EPA’s test fuel regulation prohibits the use of E30 

as a test fuel. As a direct result of that regulation, petitioners

claim that they face a regulatory impediment (what they view 

as an illegal regulatory impediment) that prevents their 

product from being used as a test fuel. That qualifies as an 

injury in fact. See Abigail Alliance for Better Access to

 1 The biofuel producers are Carbon Green BioEnergy, DENCO 

II, Iroquois Bio-Energy Company, LSCP, Patriot Renewable Fuels 

(owned by Patriot Holdings, which is also a petitioner), and 

Siouxland Ethanol. They are joined as petitioners by ICM, which is 

a company that designs and builds ethanol plants, and by the 

biofuel advocacy group Energy Future Coalition.
4

Developmental Drugs v. Eschenbach, 469 F.3d 129, 134-35

(D.C. Cir. 2006). 

EPA points out that the test fuel regulation is technically 

directed at vehicle manufacturers, not biofuel producers. But 

that does not undermine petitioners’ standing. The standing 

question in this case is straightforward: If the Government

prohibits or impedes Company A from using Company B’s 

product, does Company B have standing to sue? Suppose the 

FDA bans or makes it harder for soda manufacturers to use 

sugar. Does a sugar manufacturer have standing to sue? Or 

suppose the District of Columbia bans or makes it harder for

concession stands to sell hot dogs. Does a local hot dog 

manufacturer have standing to sue? Ordinarily the answer to 

those questions is yes. In such cases, both Company A and 

Company B are “an object of the action (or forgone action) at 

issue,” so “there is ordinarily little question” that they have 

standing under Lujan. 504 U.S. at 561-62; see also Ethyl 

Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (fuel 

additive manufacturer has standing to challenge EPA 

emissions testing regulation). So it is here.

Petitioners have also demonstrated causation and 

redressability. Petitioners contend that the “commercially

available” requirement is a direct regulatory impediment that 

prevents their product from being used as a test fuel. That 

suffices to show causation. See Abigail Alliance, 469 F.3d at 

135 (Many “hurdles impeding Alliance members from 

accessing post-Phase I investigational new drugs have been 

erected by the FDA. This is sufficient to establish 

causation.”). 

It is true that “vehicle manufacturers may have valid 

business reasons” other than EPA’s test fuel regulation “for 

not seeking to use” E30 as a test fuel. EPA Br. 27. But that 
5

does not undermine causation here. Petitioners simply seek

an opportunity to compete in the marketplace. As of now, 

they claim they are being denied that opportunity because of 

EPA’s regulation. Moreover, if EPA permitted vehicle 

manufacturers to use E30 as a test fuel, there is substantial

reason to think that at least some vehicle manufacturers would

use it. Indeed, Ford Motor Company submitted comments to 

EPA saying that it “supports the development and 

introduction of an intermediate level blend fuel (E16-E50)” 

and that the “development of such a fuel would enable the 

first steps to the development of a new generation of highly 

efficient internal combustion engine vehicles.” J.A. 145. 

Finally, petitioners’ injury is redressable. Invalidating

the “commercially available” requirement would remove a 

regulatory hurdle to the use of E30 as a test fuel. That is 

enough to demonstrate redressability. A “plaintiff satisfies 

the redressability requirement” by showing “that a favorable 

decision will relieve a discrete injury” to the plaintiff. 

Massachusetts v. EPA, 549 U.S. 497, 525 (2007). The 

plaintiff “need not show that a favorable decision will relieve”

his or her “every injury.” Id.

2

 2 This case differs from Chamber of Commerce v. EPA, 642 

F.3d 192 (D.C. Cir. 2011). In that case, the Chamber of Commerce 

and an association of automobile dealers challenged EPA’s decision 

to grant California a waiver from federal preemption under the 

Clean Air Act. The automobile dealers claimed that EPA’s 

decision injured them because it (i) required automobile 

manufacturers to alter the mix of vehicles sold in California, putting 

California dealers at a disadvantage compared to out-of-state 

dealers and (ii) increased the cost of buying vehicles, decreasing the 

dealers’ profit margins. As relevant here, the Court stated that 

objective evidence directly undermined petitioners’ theory of 

standing. Multiple empirical studies showed that car manufacturers 
6

Put simply, petitioners have standing to challenge the 

legality of the test fuel regulation.

Second, petitioners are within the zone of interests 

protected by the Clean Air Act. See Lexmark International, 

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 

1388-89, slip op. at 10-11 (2014). The Clean Air Act 

provides that a “petition for review of . . . any other nationally 

applicable regulations promulgated, or final action taken, by 

the Administrator under this chapter may be filed only in the 

United States Court of Appeals for the District of Columbia.” 

42 U.S.C. § 7607(b)(1). The Clean Air Act seeks to further 

clean air while at the same time still allowing some

productive economic activity, even though that economic

activity may result in some emissions of pollutants. 

As the Supreme Court has emphasized, the zone of 

interests test “is not meant to be especially demanding.” 

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. 

Patchak, 132 S. Ct. 2199, 2210, slip op. at 15 (2012); see also 

Ethyl, 306 F.3d at 1148. Indeed, the “test forecloses suit only 

when a plaintiff’s interests are so marginally related to or 

 

were likely to meet California’s regulatory requirements without 

altering the mix of vehicles sold in California. See id. at 202-03. 

Moreover, because car manufacturers could alter their vehicle mix 

by selling smaller cars in urban areas and larger cars near 

mountainous areas, and because one of the two car dealers that 

submitted a standing affidavit was located near a mountainous area, 

the Court concluded that petitioners had not established that the car 

dealers would be unable to meet their customers’ demands for 

larger vehicles because of EPA’s waiver decision. See id. at 203. 

Given those facts, the Court stated that the petitioners in Chamber 

of Commerce lacked standing. In this case, by contrast, EPA does 

not cite any similar evidence that undermines petitioners’ theory of 

standing.
7

inconsistent with the purposes implicit in the statute that it 

cannot reasonably be assumed that Congress intended to 

permit the suit.” Match-E, 132 S. Ct. at 2210, slip op. at 16 

(internal quotation marks omitted); see also Myersville 

Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 

1301, 1316 (D.C. Cir. 2015).

In Ethyl, this Court held that a fuel additive manufacturer 

fell within the zone of interests under the Clean Air Act and 

could challenge EPA regulations governing emissions testing 

for vehicles. See 306 F.3d at 1148. Petitioners here challenge 

an EPA regulation governing emissions testing for vehicles 

under the same part of the Clean Air Act. We see no 

principled way to distinguish the fuel additive manufacturer in 

Ethyl from the biofuel producers in this case, a conclusion 

only strengthened by the Supreme Court’s recent cases

emphasizing that the zone of interests test is not especially

demanding. Petitioners are within the zone of interests.

Third, petitioners’ challenge is timely. A petition for 

review of final EPA action under the Clean Air Act ordinarily 

must “be filed within sixty days from the date notice” of the 

action “appears in the Federal Register.” 42 U.S.C. 

§ 7607(b)(1). On April 28, 2014, EPA issued a final rule 

extending the test fuel regulation to light-duty cars and trucks. 

On June 26, 2014, fewer than 60 days after publication, 

petitioners timely filed this petition.

Fourth, petitioners’ suit is ripe. The “fitness of an issue 

for judicial decision depends on whether it is purely legal, 

whether consideration of the issue would benefit from a more 

concrete setting, and whether the agency’s action is 

sufficiently final.” National Association of Home Builders v. 

Army Corps of Engineers, 417 F.3d 1272, 1281 (D.C. Cir. 

2005) (internal quotation marks omitted). If “there are no 
8

significant agency or judicial interests militating in favor of 

delay,” a lack of hardship “cannot tip the balance against 

judicial review.” National Association of Home Builders v. 

Army Corps of Engineers, 440 F.3d 459, 465 (D.C. Cir. 

2006).

Petitioners argue that the test fuel regulation is arbitrary 

and capricious because it requires that a test fuel be 

“commercially available.” That claim is ripe. The test fuel 

regulation is a final agency action, and petitioners’ challenge 

is purely legal. “It is well-established that claims that an 

agency’s action is arbitrary and capricious or contrary to law 

present purely legal issues.” Cement Kiln Recycling Coalition 

v. EPA, 493 F.3d 207, 215 (D.C. Cir. 2007) (internal 

quotation marks omitted). Consideration of the issue would 

not benefit from a more concrete setting. In a similar case, 

EPA argued that the suit was “not ripe for review” because it 

was “entirely speculative how EPA’s” action would impact 

regulated entities. National Environmental Development 

Association’s Clean Air Project v. EPA, 752 F.3d 999, 1008 

(D.C. Cir. 2014). We rejected that objection, saying that 

“EPA’s argument misses the point.” Id. If a suit “presents a 

purely legal question of whether EPA’s final action” violates 

the Clean Air Act or EPA regulations, it is “unnecessary to 

wait” for EPA’s legal conclusion “to be applied in order to 

determine its legality.” Id. So too here.

II

On the merits, petitioners argue that a fuel should not 

have to be “commercially available” in order to be approved 

as a test fuel. They contend that EPA’s regulation, which 

requires that a test fuel be “commercially available,” is 

therefore arbitrary and capricious. We disagree. It is entirely 

commonsensical and reasonable for EPA to require vehicle 
9

manufacturers to use the same fuels in emissions testing that 

vehicles will use out on the road. Moreover, the regulation is 

rooted in (if not compelled by) the statute, which says that 

EPA must ensure that “vehicles are tested under 

circumstances which reflect the actual current driving 

conditions under which motor vehicles are used, including 

conditions relating to fuel.” 42 U.S.C. § 7525(h).

Petitioners say, however, that the test fuel regulation 

creates a catch-22. Consistent with the statute’s directive, the 

regulation prohibits the use of a test fuel that is not 

“commercially available.” 40 C.F.R. § 1065.701(c). At the 

same time, another statutory provision prohibits the sale of a 

fuel that is not “substantially similar” to an approved test fuel. 

42 U.S.C. § 7545(f). Putting those two requirements together, 

petitioners see a catch-22: They contend that it is illegal to 

use a test fuel unless it is first approved for sale in the market, 

and that it is illegal to sell a fuel in the market unless it is first 

approved for use as a test fuel. 

Petitioners’ argument fails, however, because EPA’s test 

fuel regulation is not the source of any catch-22. Rather, to 

the extent a so-called catch-22 exists – which has been neither 

established nor conceded – it is the result of the statutory 

scheme adopted by Congress.3

 

Petitioners also contend that the “commercially 

available” requirement is arbitrary and capricious because it 

conflicts with EPA’s stated purpose of permitting the use of 

new kinds of test fuels. But as we have already explained, the 

 3 We do not decide here whether the test fuel regulation’s 

“commercially available” requirement is compelled by the statute

or whether, consistent with the statute, EPA could relax the 

“commercially available” requirement. We need not reach that 

question and do not imply an answer one way or the other.
10

Clean Air Act provides that EPA’s test fuel regulations must 

“reflect the actual current driving conditions under which 

motor vehicles are used, including conditions relating to fuel.” 

Id. § 7525(h). It is not arbitrary and capricious for EPA to 

fulfill that statutory mandate by requiring that test fuels be 

“commercially available.”

In short, the “commercially available” requirement is not 

arbitrary and capricious. 

* * *

We have considered all of petitioners’ arguments. We 

deny the petition for review.

So ordered.