Lead Opinion
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Senior Circuit Judge SILBERMAN.
In this case we consider challenges to EPA’s revised emissions standards for secondary lead smelting facilities. Finding petitioners’ claims unpersuasive, foreclosed by Circuit precedent, or otherwise barred from review, we deny in part and dismiss in part the petitions for review.
Section 112 of the Clean Air Act requires EPA to promulgate emissions standards for major sources of hazardous air pollutants (“HAPs”). 42 U.S.C. § 7412(d)(1). To do so, EPA calculates the “maximum achievable control technology” or “MACT,” a process that occurs in two stages. First, under CAA section 112(d)(3), EPA sets what it calls the “MACT floor” — certain minimum stringency requirements based on the amount of emissions reduction achieved in practice by the best performing sources. Id. § 7412(d)(3). Second, under section 112(d)(2), EPA “determines whether stricter standards, known as ‘beyond-the-floor’ limits, are achievable in light of the factors listed in [that provision].” Cement Kiln Recycling Coalition v. EPA
Section 112(d)(6) requires EPA to “review, and revise as necessary (taking into account developments in practices, processes, and control technologies)” the emissions standards promulgated under section 112. 42 U.S.C. § 7412(d)(6). Section 112(f)(2) also requires EPA to review emissions standards to “consider whether residual risks [to public health or the environment] remain that warrant more stringent standards than achieved through MACT.” Sierra Club v. EPA,
In 2012, acting pursuant to sections 112(d)(6) and 112(f)(2), EPA revised the 1995 emissions standards for secondary lead smelting facilities, reducing allowable emissions by 90% — from the 2.0 milligrams per dry standard cubic meter (mg/dscm) previously permitted to 0.2 mg/dscm — and requiring smelters to totally enclose certain “fugitive” emission sources. See National Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting (“Secondary Lead Rule”), 77 Fed. Reg. 556, 559, 564 (Jan. 5, 2012). Several industry groups and environmental groups filed petitions for review. Environmental and industry petitioners intervened as respondents in one another’s cases, and RSR Corporation intervened both as a petitioner and as a respondent.
II.
Industry petitioners first argue that the Secondary Lead Rule impermissibly regulates elemental lead as a HAP. Although EPA must regulate lead compounds as a HAP, see 42 U.S.C. § 7412(b)(1), the Clean Air Act prohibits EPA from listing or “in effect treat[ing]” elemental lead — or any criteria pollutant for which national ambient air quality standards (“NAAQS”) are promulgated — as a HAP under section 112, National Lime Association v. EPA,
Industry petitioners next make a related argument that because, the Secondary Lead Rule “measure[s] lead compounds by reference to their elemental lead content and toxicity” — the .same methodology they claim is used to measure elemental lead in the prevention of significant deterioration (“PSD”) program — regulation of these substances under the PSD program is du-plicative and unlawful. Industry Petitioners’ Br. 30; see 42 U.S.C. § 7412(b)(6) (providing that PSD program shall not apply to HAPs listed under section 112). But we lack jurisdiction to consider this argument because EPA took no action with respect to the PSD program in this rulemaking.
Next, industry petitioners challenge EPA’s methodology for estimating fugitive emissions at secondary lead smelting facilities and EPA’s reliance on these estimates to conclude that total enclosure of fugitive emission sources was warranted. As EPA points out, however, industry petitioners “suggested in comments that any error in EPA’s methodology resulted in an underestimation of emissions from completely unenclosed facilities.” Respondents’ Br. 52. Thus, even if industry petitioners were correct, given that emissions from such facilities drove EPA’s finding of unacceptable risk, they would “have done no more than show that, the record even more fully supports the enclosure standard.” Respondents’ Br. 53. Accordingly, petitioners' lack standing to press this claim, because they have failed to show that, absent the alleged methodological error, “ ‘there is a substantial probability that they would not be injured and that, if the court affords the relief requested, the injury will be removed.’ ” Coalition for Responsible Regulation, Inc. v. EPA,
Industry petitioners’ challenge to the Rule’s requirement of lead continuous emissions monitoring systems (“CEMS”) fares no better. To begin with, any claim that the CEMS requirement is arbitrary and capricious is premature. EPA has yet to promulgate performance specifications for CEMS and, until it does, smelters have no obligation to install CEMS. See 40 C.F.R. § 63.548(i )(1) (requiring sources to install a lead CEMS “within 180 days” of promulgation of performance specifications). As petitioners themselves recognize, “without a [performance] specification it is impossible to determine whether lead CEMS will function appropriately in secondary lead smelters” or to ascertain “accurate cost information for the installation and operation of lead CEMS.” Industry Petitioners’ Br. 22, 23. This court would thus clearly “benefit from further factual development, of the issues” in connection with the performance specification rule-making. Ohio Forestry Association, Inc. v. Sierra Club,
We also reject industry petitioners’ contention that EPA’s refusal to consider granting existing sources up to three years to comply with the revised emissions standards under CAA section 112(i)(3) was arbitrary and capricious. See 42 U.S.C. § 7412(i)(3) (authorizing the Administrator to grant existing sources up to three years for compliance with emissions standards). EPA concluded that section 112(f)(4), which permits it to grant a waiver of no more than two years for compliance, see id. § 7412(f)(4), instead provided the governing framework for emissions standards promulgated under section 112(f), like those at issue here. This interpretation comports with the statute’s unambiguous language. Although section 112(i)(3)’s three-year maximum compliance period applies generally to “any emissions standard ... promulgated under [section 112];” id. § 7412(i)(3), section U2(f)(4)’s two-year maximum applies more specifically to standards “under this subsection,” i.e., section 112(f), id. § 7412(f)(4). It is a well-established principle of statutory construction that “‘[general language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment.’ ” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, — U.S. —,
Equally without merit is industry petitioners’ claim that EPA’s decision to revise emissions standards under section 112(d)(6) was arbitrary and capricious. Although petitioners contend that EPA failed to consider public health objectives or other controls imposed on emissions sources in determining whether more stringent standards were “necessary,” nothing in section 112(d)(6)’s text suggests that EPA must consider such factors. To the contrary, the statute directs EPA to “tak[e] into account developments in practices, processes, and control technologies,” 42 U.S.C. § 7412(d)(6), not public health objectives or risk reduction achieved by additional controls.
III.
We turn next to environmental petitioners’ challenge and begin with Article III standing. Contrary to industry inter-venors’ claim, environmental petitioners have shown that their members “would have standing under Article III to sue in [their] own right,” as required to establish associational standing. NRDC v. EPA,
Environmental petitioners’ challenge, however, fails on the merits. Their primary argument is that, when EPA revises emissions standards under section 112(d)(6), it must recalculate the maximum achievable control technology in accordance with sections 112(d)(2) and (d)(3). This argument, although far better developed than the identical claim in NRDC v. EPA,
Environmental petitioners next argue that EPA impermissibly considered cost in revising emissions standards under section 112(d)(6). But the statute only bars cost consideration in setting MACT floors under section 112(d)(3), see National Lime,
Finally, environmental petitioners have failed to show that EPA acted arbitrarily and capriciously when it decided not to impose more stringent emissions standards based on certain technological developments — namely, high efficiency particulate air (“HEPA”) filters and wet electrostatic precipitators (“WESP”). EPA reasonably explained that further reductions were unwarranted due to concerns about the feasibility, utility, cost-effectiveness, and adverse collateral environmental impacts associated with this technology, and petitioners point to no “clear error of judgment” reflected in this reasoning. Defenders of Wildlife v. Salazar,
IV.
With the exception of RSR’s challenge to the CEMS requirement, which we reject for the same reasons as industry petitioners’ identical claim, see supra at 671-72, RSR challenges only EPA’s failure to require that more stringent standards be imposed on the company’s competitors. According to industry intervenors, RSR lacks prudential standing to bring those claims. See In re Vitamins Antitrust Class Actions,
V.
For the foregoing reasons, the petitions for review are denied in part and dismissed in part.
So ordered.
Concurrence Opinion
concurring:
I concur fully in the Court’s opinion. I write separately to explain more completely why it is appropriate for us to hold that intervenor RSR Corporation lacks prudential standing.
Though RSR is in the unusual position of intervening as both a petitioner and respondent, nearly all of its substantive arguments overlap with those made by the environmental petitioners. But unlike the environmental petitioners, RSR’s only interest in this dispute is increasing the regulatory burden on its competitors, and as the Court explains, Op. at 673-74, it is well-established that such an interest does not suffice to show prudential standing. Cement Kiln Recycling Coal. v. EPA,
The EPA has not itself argued that RSR lacks prudential standing, and while the
We were not required to address that question here, however, because we treat prudential standing as a jurisdictional limit that cannot be waived. See Grocery Mfrs. Ass’n v. EPA
Judge Kavanaugh acknowledged that “older cases from this Court said that prudential standing was jurisdictional.” Id. at 185 n. 4 (citing Animal Legal Def. Fund,
But a majority
I take this .opportunity to respond. First, it should be noted that the term “prudential standing” is a misnomer — at least in the context of whether a plaintiff
That characterization is sensible because this test — unlike other prudential standing inquiries — is a gloss on the APA’s right of review for “[a] person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. See Air Courier Conference of Am. v. Am. Postal Workers Union AFL-CIO,
The question of whether a plaintiff has statutory standing therefore depends on Congressional intent — does Congress intend that this particular class of persons have a right to sue under this substantive statute? In that respect, statutory standing is similar to subject-matter jurisdiction, and this Court has even described it as such in a past case. See Mallick v. Int’l Bhd. of Elec. Workers,
The significance as to whether statutory standing is labeled jurisdictional relates to two other questions. First, is a court obliged to consider statutory standing where the parties have not raised it, and second, can a court rely on statutory standing prior to consideration of an Article III issue? As to the first question, Supreme Court case law is unclear. But on the second question — the order in which issues may be considered — the Court has treated statutory standing like other jurisdictional thresholds. Normally a federal court must confront an Article III question at the outset of a case, but the Supreme Court has noted that a federal court may decide a statutory standing is
The Supreme Court has made statements in dicta that would appear to limit jurisdictional issues (besides Article III) to subject-matter and personal jurisdiction. See, e.g., Reed Elsevier,
Most of the Courts of Appeals that have held prudential standing non-jurisdictional concerned only third-party standing, which really is a judge-made concept. See Bd. of Miss. Levee Comm’rs v. EPA
As far as I am aware, only two courts have held specifically that the zone-of-interests test is non-jurisdictional, and they did not recognize or discuss any difference between statutory standing and prudential standing generally. See Finstuen v. Crutcher,
In light of this confusing tangle of jurisprudential concepts — and especially in light of the apparent differences between statutory standing and other species of prudential standing — I think we ought to be especially hesitant to overturn past precedent on these issues until the Supreme Court has provided clear guidance.
In any event, even if we were not required to consider statutory standing sua sponte, we would still have the authority to do so under U.S. National Bank of Oregon v. Independent Insurance Agents of America, Inc.,
Finally, it is worth noting that this question — whether prudential standing should be raised by a federal court sua sponte— typically arises when the government neglects to raise the issue, which might be thought a rare occasion of litigation lapse. However, in both this case and Grocery Manufacturers, the Justice Department failed to do so, and in both cases, the government’s position was defended by the Environmental Division. It would seem that this division — perhaps reflecting the political views of its major “client” (the EPA) — declines to raise standing issues available as a defense. That practice has led to some dramatic contrasts between positions taken by the Civil Division and the Environmental Division. Indeed, in one ease some years ago, a lawyer for the Environmental Division fainted during oral argument while attempting to explain a different position on standing than one argued a few days before by a Civil Division lawyer.
The justification for the Justice Department’s control over all executive branch litigation — a control that I, as a judge, think is even more important than I once thought as a Justice Department official— depends on its ability to ensure uniformity and sophistication in government litigation. It hardly serves that end to allow one division of the Justice Department to sub
Notes
. The industry group characterizes the rule from Grocery Manufacturers as stating that "[t]his Court considers prudential standing arguments raised by Respondent-Intervenors, even where [respondent] does not raise the objection.” But Grocery Manufacturers does not say that prudential standing has any special relationship to the rule about arguments raised only by intervenors. Rather, it stands for the general principle that the zone-of-interests test is jurisdictional, and therefore must be considered by the court even when not raised by the parties.
. Judge Tatel, writing separately, noted his agreement with those other circuits that found prudential standing non-jurisdictional, but also stated that "[t]his Circuit ... has directly held to the contrary,” and found that the language in Supreme Court decisions collected by the dissent was insufficient “to permit this panel to depart from our clear prior holdings.” Grocery Mfrs. Ass’n v. EPA,
. I recognize that the Supreme Court has applied the zone-of-interests test to at least one non-statutory cause of action. See Bos. Stock Exch. v. State Tax Comm’n,
. To be sure, Steel Co. indicates that a merits question could be'decided before a statutory standing issue because they are interrelated (i.e., is the plaintiff arguably within its zone of interest?),
. To confuse matters furthers, consider that personal jurisdiction — unlike Article III standing or subject-matter jurisdiction — may be waived. Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee,
. Prudential standing might therefore stand on the same footing as prudential ripeness. The Supreme Court has indicated that "ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs.,