 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



                   Filed: January 15, 2013

                        No. 10-1380

     GROCERY MANUFACTURERS ASSOCIATION, ET AL.,
                   PETITIONERS

                             v.

          ENVIRONMENTAL PROTECTION AGENCY,
                    RESPONDENT

                     GROWTH ENERGY,
                       INTERVENOR


   Consolidated with 10-1414, 11-1002, 11-1046, 11-1072,
                          11-1086


            On Petitions for Rehearing En Banc
                          _______

    Before: SENTELLE, Chief Judge; HENDERSON, ROGERS,
            TATEL, GARLAND*, BROWN, GRIFFITH, and
            KAVANAUGH**, Circuit Judges

                        ORDER

    The petition of the American Petroleum Institute and the
Food Petitioners for rehearing en banc; the petition of the
Engine Products Group for rehearing en banc; and the petition
                               2

of American Fuel & Petrochemical Manufacturers and
International Liquid Terminals Association for rehearing en
banc, and the responses to the petitions were circulated to the
full court, and a vote was requested. Thereafter, a majority of
the judges eligible to participate did not vote in favor of the
petitions. Upon consideration of the foregoing, it is

    ORDERED that the petitions be denied.

                                     FOR THE COURT:
                                     Mark J. Langer, Clerk

                                BY: /s/
                                    Jennifer M. Clark
                                    Deputy Clerk

* Circuit Judge Garland did not participate in this matter.

** Circuit Judge Kavanaugh would grant the petitions.

** A statement by Circuit Judge Kavanaugh dissenting from
the denial of the petition for rehearing en banc is attached.
     KAVANAUGH, Circuit Judge, dissenting from the denial
of rehearing en banc:

     This case concerns a challenge to EPA’s E15 waiver
decision. The E15 waiver, in conjunction with the statutory
renewable fuel mandate, will require petroleum producers to
refine and sell E15, a blend of gasoline that contains 15
percent ethanol. The E15 waiver also will increase the
demand for corn and thus increase corn prices for food
producers. Two industry groups separately challenged the
E15 waivers – the food producers who will pay higher prices
for corn and the petroleum producers who will be forced to
refine and sell E15. They contended that the E15 waiver will
palpably and negatively affect the American food and
petroleum industries, with corresponding impacts on
American consumers. And they argued that the E15 waiver is
unlawful because it exceeds EPA’s statutory authority.

     Even though EPA did not raise a challenge to the
standing of the food producers or the petroleum producers, the
panel dismissed the case on standing grounds. The panel
determined that the food producers have Article III standing
but lack prudential standing because, according to the panel,
the food producers are not within the zone of interests under
the relevant ethanol-related statute. The panel separately held
that the petroleum producers lack Article III standing. We
must reach the merits if either the food producers or the
petroleum producers have standing. In my view, both groups
plainly have standing.

                                 I

     To begin with, the panel ruled that the food producers
lack prudential standing. That holding is incorrect for either
of two alternative reasons.
                               2
     First, the Administrative Procedure Act’s prudential
standing “zone of interests” requirement is not jurisdictional,
and the issue was not raised in this case by respondent EPA.
Therefore, the issue is forfeited. Based on older circuit
precedent, however, the panel held that the zone of interests
requirement is jurisdictional and that the court therefore had
to consider it on its own motion. The circuits are split on
whether the zone of interests requirement is jurisdictional;
some other circuits disagree with the conclusion of the panel
here. Applying recent Supreme Court precedents, I would
conclude that the zone of interests requirement is not
jurisdictional. The recent Supreme Court decisions have
repeatedly emphasized more careful attention to the
jurisdiction label. Those cases have stressed that a rule is not
jurisdictional unless it is labeled by Congress as such or
unless it speaks to the power of the courts to hear the case.
See, e.g., Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.
1197, 1202-03 (2011); Reed Elsevier, Inc. v. Muchnick, 130
S. Ct. 1237, 1243-44 (2010).

     Here, the APA gives a cause of action to “aggrieved”
parties; the zone of interests requirement is simply a way to
help determine whether a particular party is “aggrieved.” The
zone of interests requirement does not pertain to the power of
the court to hear a case. Under the Supreme Court’s recent
decisions, therefore, the zone of interests requirement is not
jurisdictional – a reading of the recent Supreme Court
precedents with which Judge Tatel appears to agree, as he
indicated in his panel concurrence. As a result, because EPA
chose not to challenge the food producers’ prudential standing
– in other words, because EPA accepted that the food
producers were within the zone of interests and therefore an
aggrieved party – that issue has been forfeited and is no
longer part of the case.
                                3
     Second, even if the prudential standing zone of interests
issue were properly presented in this case, the food producers
easily meet the requirements set forth in the Supreme Court’s
important recent decision in Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak. 132 S. Ct. 2199
(2012). Justice Kagan’s opinion for the Supreme Court in
Match-E – the Supreme Court’s first comprehensive analysis
of the prudential standing zone of interests requirement in 25
years – made clear that the zone of interests test poses a very
low additional bar to an otherwise permissible APA suit by a
party with Article III standing.

     The Supreme Court’s Match-E decision was issued after
oral argument in our case, and the panel majority opinion
appeared to treat it as a bit of an afterthought, devoting a scant
two sentences to it. Under Match-E, as I read it, the food
producers are well within the zone of interests of Section
7545, which sets forth the ethanol mandate. See 42 U.S.C.
§ 7545. The food producers’ case for being within the zone
of interests is especially strong here because Congress
expressly took account of the interests of food producers,
among others, in this ethanol-related statute. Moreover, the
food producers’ economic interests are directly affected by
the increased demand for corn caused by EPA’s E15 waiver.
The prudential standing zone of interests issue is thus not a
close call here, in my view, even assuming that it is properly
part of the case.

    With the panel majority opinion left intact, this Court’s
prudential standing law will unfortunately linger in a state of
uncertainty and error. I hope that it can be clarified at some
point in a manner that comports with the Supreme Court’s
recent decisions on jurisdiction and prudential standing.
                                4
                                II

     Of course, even if the food producers could not bring
suit, the petroleum producers have separately challenged the
E15 waiver. The panel ruled that the petroleum producers
lack Article III standing to challenge the E15 waiver. But the
petroleum producers are directly regulated parties; and as the
Supreme Court has said, when a party “is himself an object of
the action” at issue, “there is ordinarily little question that the
action” has “caused him injury, and that a judgment
preventing” the action “will redress it.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561-62 (1992). Indeed, EPA did not
even challenge the petroleum producers’ Article III standing,
recognizing at oral argument that the petroleum producers’
standing was “self-evident.” Tr. of Oral Arg. at 30.

     Although we of course still have to consider Article III
standing because Article III standing is jurisdictional, EPA’s
view on this point is quite telling. EPA did not raise Article
III standing no doubt because it fully understands how this
program actually works, and EPA appreciates that the
combination of the statutory renewable fuel mandate and
EPA’s E15 waiver will obviously force petroleum producers
to refine and sell E15. The panel majority opinion speculated,
however, that the petroleum producers can meet the
renewable fuel mandate without refining and selling E15, and
that EPA’s E15 waiver therefore would not cause the injury to
the petroleum producers. The evidence overwhelmingly
indicates the contrary – namely, that petroleum producers will
have to use E15 to meet the renewable fuel mandate. In fact,
the ethanol producers who sought the E15 waiver specifically
argued to EPA that the E15 waiver was “necessary” for
petroleum producers to meet the renewable fuel mandate.
What better evidence do we need? The petroleum producers
have shown, at a minimum, the requisite “substantial
                                5
probability” that the E15 waiver will require them to refine
and sell E15. The petroleum producers thus have Article III
standing to challenge the E15 waiver.

                                 ***

     The panel’s decision to throw out the suit on standing
grounds is mistaken in multiple independent ways, in my
respectful view. And the panel’s standing holding is
problematic not only because of the erroneous standing law
that it creates, but also because it is outcome-determinative in
a case with significant economic ramifications for the
American food and petroleum industries, as well as for
American consumers who will ultimately bear some of the
costs.1      The panel’s standing holding is outcome-
determinative because EPA will lose if we reach the merits.
The E15 waiver plainly violates the statutory text. The statute
does not allow a waiver for a new fuel if the waiver would
cause failure of emissions standards in cars manufactured
after 1974. The evidence is undisputed that this E15 waiver
would cause failure of emissions standards in cars
manufactured through 2000. Yet EPA still granted the
waiver. EPA’s action simply cannot be squared with the
statutory text.

    I respectfully dissent from the denial of rehearing en
banc.

    1
       Although not my focus here, I also note that the E15 waiver
apparently will harm some cars’ engines, a point made by a third
set of petitioners in this case (the engine manufacturers). Indeed,
just a few weeks ago, the American Automobile Association
warned of the damage E15 will cause to car engines and took the
extraordinary step of publicly asking EPA to block the sale of E15.
See Gary Strauss, AAA Warns E15 Gasoline Could Cause Car
Damage, USA TODAY, November 30, 2012.
