On Petitions for Review of Orders of the Environmental Protection Agency
Before: Ginsburg, Chief Judge, and Sentelle and
Henderson, Circuit Judges.
The opinion of the court was delivered by: Chief Judge Ginsburg.
Argued September 11, 2003
Operators of five large-haul truck fleets challenge the Environmental Protection Agency's refusal to reconsider the 2004 Standard for nitrous oxide (NOx) and nonmethane hydrocarbon (NMHC) emissions from "heavy heavy-duty" diesel engines. Because the Trucking Companies have failed to show their injury is fairly traceable to the 2004 Standard, we dismiss their petition for lack of standing under Article III of the Constitution of the United States.
In the 1990 Amendments to the Clean Air Act the Congress authorized the EPA to promulgate regulations limiting NOx and NMHC emissions from "classes or categories of heavy-duty vehicles or engines." 42 U.S.C. § 7521(a)(3)(A)(i). The EPA identified three categories of heavy-duty diesel engines for the purpose of regulating emissions: light, medium, and heavy. See 40 C.F.R. § 86.090–2. The Trucking Companies' petition concerns only the EPA's regulation of emissions from heavy heavy-duty diesel engines (HHDDEs), which are the engines used in large-haul tractors (truck cabs).
Section 7521(a)(3)(A)(i) provides that any requirements applicable to heavy-duty engines
shall contain standards which reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the model year to which such standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the application of such technology.
42 U.S.C. § 7521(a)(3)(A)(i). This is a technology-forcing provision; it mandates regulations with which manufacturers can comply only by adopting new technologies as they become available.
The EPA promulgated three emissions standards for HHDDEs. One standard, applicable to engine model years 1998 to 2003, implements the statutory maximum for NOx emissions of "4.0 grams per brake horsepower hour [(g/bhphr)]." See Control of Emissions of Air Pollution From 2004 and Later Model Year Heavy–Duty Highway Engines and Vehicles, 65 Fed. Reg. 59,896, at 59,898 (Oct. 6, 2000). For model years 2004 to 2006 the standard is a 2.5 g/bhp-hr of NOx plus NMHC. See Control of Emissions of Air Pollution From Highway Heavy–Duty Engines, 62 Fed. Reg. 54,694, at 54,699 (Oct. 21, 1997).
The third standard governs HHDDE emissions in model years 2007 and beyond. See Control of Air Pollution From New Motor Vehicles: Heavy–Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements, 66 Fed. Reg. 5,002 (Jan. 18, 2001). The 2007 Standard, which we upheld in National Petrochemical & Refiners Ass'n v. EPA, 287 F.3d 1130 (D.C. Cir. 2002), limits NOx emissions to 0.20 g/bhp-hr and emissions of NMHC to 0.14 g/bhp-hr.
In October 1998 the EPA found manufacturers of the vast majority of HHDDEs sold in the United States were attaching "defeat devices" to their engines. See United States v. Caterpillar, 227 F. Supp. 2d 73, 77 (D.D.C. 2002). These devices enabled their engines to meet the 4.0 g/bhp-hr standard in laboratory testing by the EPA, but once disabled resulted in NOx emissions as high as 7.0 g/bhp-hr.
In 1999 the six manufacturers that produce and sell the vast majority of HHDDEs used in the United States entered into Consent Decrees in which they agreed to end this circumvention of the emissions standards. The manufacturers also agreed to produce by October 2002 engines emitting no more than 2.5 g/bhp-hr of NOx plus NMHC. See Caterpillar, 227 F. Supp. 2d at 76. This so-called "pull-ahead" provision of the Consent Decrees tracks but is not dependent upon the 2004 Standard, and would therefore bind the engine manufacturers even if the 2004 Standard were relaxed or rescinded. See, e.g., Caterpillar Consent Decree ¶ ¶ 20, 154, available at http://www.epa.gov/compliance/resources/cases/ civil/caa/caterpilall.pdf, January 1, 1999. The engine manufacturers also agreed to be bound by the more stringent emissions limits established for the "steady-state" and "notto-exceed" testing processes in 40 C.F.R. § 86.007–11, which are otherwise applicable only to engines manufactured in 2007 and beyond. See, e.g., Caterpillar Consent Decree ¶ 20 & App. C. As of January 2003 the EPA had certified 20 "engine families" as complying with the 2.5 g/bhp-hr standard established in the Consent Decrees.
In early 2001 the engine manufacturers petitioned the EPA for a rulemaking to permit manufacturers that could not meet the pull-ahead deadline of October 2002 for a limited time to pay a "nonconformance penalty," as contemplated in 42 U.S.C. § 7525(g). The EPA obliged and set NCPs in August 2002. See Non–Conformance Penalties for 2004 and Later Model Year Emission Standards for ...