 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 17, 2012               Decided August 17, 2012

                        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 Review of Final Actions
          of the Environmental Protection Agency


     Catherine E. Stetson argued the cause for petitioners
Grocery Manufacturers Association, et al. Michael F. McBride
argued the cause for petitioners Alliance of Automobile
Manufacturers, et al. With them on the briefs were Mary Helen
Wimberly, Richard A. Penna, Marisa Hecht, Chet M. Thompson,
William L. Wehrum, and Lewis F. Powell, III.
                               2

      Kenneth T. Cuccinelli, II, Attorney General, Office of the
Attorney General for the State of Virginia, E. Duncan Getchell
Jr., Solicitor General, Stephen R. McCullough, Senior Appellate
Counsel, Charles E. James Jr., Chief Deputy Attorney General,
and Wesley G. Russell Jr., Deputy Attorney General, Luther
Strange, Attorney General, Office of the Attorney General for
the State of Alabama, E. Scott Pruitt, Attorney General, Office
of the Attorney General for the State of Oklahoma, and John J.
Burns, Attorney General, Office of the Attorney General for the
State of Alaska, were on the brief as amici curiae State of
Alabama, et al.

     Jessica O'Donnell, Attorney, Department of Justice, argued
the cause and filed the brief for respondent.

    Randolph D. Moss argued the cause for intervenor. With
him on the brief were Kenneth R. Meade and Brian M. Boynton.

    Before: SENTELLE, Chief Judge, TATEL and KAVANAUGH,
Circuit Judges.

    Opinion for the Court filed by Chief Judge SENTELLE.

    Concurring opinion filed by Circuit Judge TATEL.

    Dissenting opinion filed by Circuit Judge KAVANAUGH.

     SENTELLE, Chief Judge: Petitioners, trade associations
whose members are part of the petroleum and food industries,
filed petitions for review of two EPA decisions approving the
introduction of E15—a blend of gasoline and 15 percent
ethanol—for use in select motor vehicles and engines. Because
we hold that no petitioner has standing to bring this action, we
dismiss all petitions for lack of jurisdiction.
                                3

                  I. The Waiver Proceeding

     In the Energy Policy Act of 2005, Congress incorporated
into the Clean Air Act (CAA) the Renewable Fuel Standard,
Pub. L. 109-58, § 1501(a) (2005) (RFS). As amended, the RFS
requires qualifying refiners and importers of gasoline or diesel
fuel to introduce into U.S. commerce a specified, annually
increasing volume of renewable fuel.               42 U.S.C.
§ 7545(o)(2)(A)(i).

     In order to comply with the requirements of the RFS,
refiners and importers primarily blend corn-based ethanol into
the fuel supply. The national gasoline supply currently consists
largely of “E10,” a gasoline blended with 10 percent ethanol.
Given the continual increase in required volume of renewable
fuel, E10 alone will not meet the producers’ obligations forever.
E10 has substantially saturated the U.S. gasoline market already,
yet the volume of renewable fuel required to be introduced
increases annually, up to 36 billion gallons of renewable fuel in
2022. Id. § 7545(o)(2)(B)(i)(I). Moreover, an increasing
percentage of the increasing RFS obligation must come from
“advanced biofuels,” i.e., sources other than ethanol derived
from corn. Id. § 7545(o)(2)(B)(i)(II) (requiring that advanced
biofuel make up 21 billion of the 36 billion gallons of renewable
fuel required in 2022). Fuel manufacturers must, therefore,
introduce new types of renewable fuels in order to continue to
meet their growing burden under the RFS.

     Fuel manufacturers cannot introduce new renewable fuels
into the market at will. The Clean Air Act prohibits
manufacturers from introducing into commerce “any fuel or fuel
additive for use by any person in motor vehicles manufactured
after model year 1974 which is not substantially similar to any
fuel or fuel additive” used in the federal emissions certification
of those vehicles. 42 U.S.C. § 7545(f)(1)(B). To bring most
                                4

new fuels (including renewable fuels) to market, a manufacturer
must apply for a waiver of this prohibition pursuant to CAA
Section 211(f)(4), 42 U.S.C. § 7545(f)(4). The Administrator of
EPA may grant such a waiver “if he determines that the
applicant has established that such fuel or fuel additive or a
specified concentration thereof, and [its] emission products …,
will not cause or contribute to a failure of any emission control
device or system (over the useful life of the motor vehicle,
motor vehicle engine, nonroad engine or nonroad vehicle in
which such device or system is used) to achieve compliance by
the vehicle or engine with the emission standards with respect
to which [the vehicle or engine] has been certified pursuant to
sections 7525 and 7547(a) of this title.” 42 U.S.C. § 7545(f)(4).

     In March 2009, Growth Energy, a trade association
representing the ethanol industry, applied for a Section 211(f)(4)
waiver to introduce E15, an unleaded gasoline blend containing
15 percent ethanol. After notice and comment, EPA issued two
separate waiver decisions. In its first waiver decision, Partial
Grant and Partial Denial of Clean Air Act Waiver Application
Submitted by Growth Energy To Increase the Allowable Ethanol
Content of Gasoline to 15 Percent, 75 Fed. Reg. 68,094 (Nov. 4,
2010), EPA approved the introduction of E15 for use in light-
duty motor vehicles from model-year 2007 and later. At the
same time, it denied the waiver for model-year 2000 and older
vehicles because it could not determine given the data available
that using E15 in such vehicles would not contribute to failures
of emissions controls. For the same reason, EPA denied the
waiver for nonroad engines, vehicles, and equipment (e.g.,
boats, all-terrain vehicles, and weedeaters), heavy-duty gasoline
engines and vehicles, and motorcycles. Finally, EPA deferred
its decision whether to approve E15 for use in model-year
2001–2006 light-duty motor vehicles and engines, stating that it
needed further results from Department of Energy (DOE) tests
that measured the effects of ethanol blends on the durability of
                                5

engine catalysts (which “scrub” motor vehicle emissions by
converting harmful exhaust gases into carbon dioxide, nitrogen,
and water). After receiving those results, EPA issued a second
decision. Partial Grant of Clean Air Act Waiver Application
Submitted by Growth Energy To Increase the Allowable Ethanol
Content of Gasoline to 15 Percent, 76 Fed. Reg. 4662 (Jan. 26,
2011). That second decision extended the waiver to permit the
use of E15 in light-duty motor vehicles and engines from model-
years 2001–2006.

     In sum, EPA granted “partial” waivers approving the
introduction of E15 for use in model-year 2001 and newer light-
duty motor vehicles and engines. These waivers are conditional.
E15 manufacturers are required to (1) introduce only E15 that
meets certain fuel quality parameters and (2) submit for
approval by EPA a plan for the implementation of “misfueling
mitigation conditions” set forth in the EPA decision. The term
“misfueling,” as used in the EPA decisions, refers to the use of
E15 in pre-2001 vehicles and other non-approved vehicles,
engines, and equipment. The misfueling mitigation conditions
and strategies which EPA set forth as necessary for such a plan
included pump-labeling requirements, participation in a pump-
labeling and fuel-sample compliance survey, and proper
documentation of ethanol content on transfer documents.

     Three sets of industry groups (collectively, “Petitioners”)
representing members who either (1) manufacture engines and
related products (the “engine-products group” or “engine
manufacturers”), (2) sell food (including livestock) that requires
corn as an input (the “food group” or “food producers”), or (3)
produce or handle petroleum and renewable fuels (the
“petroleum group” or “petroleum suppliers”) petitioned this
court for review of EPA’s E15 waivers. We review herein the
consolidated petitions. Growth Energy, the waiver applicant,
intervened in support of EPA’s defense of its waiver decisions.
                                 6

                          II. Standing

     Petitioners contend that (1) EPA lacks authority under CAA
Section 211(f)(4) to grant “partial” waivers approving the use of
E15; (2) Growth Energy, the waiver applicant, failed to meet a
required evidentiary burden under Section 211(f)(4); (3) EPA
failed to provide sufficient opportunity for comment on certain
aspects of its waiver decision; and (4) the record does not
support EPA’s decision to grant the partial waivers. While the
government does not contest petitioners’ standing to petition for
review of EPA’s waiver decisions, intervenor Growth Energy
has called our attention to the potential failure of petitioners to
establish standing under Article III. Even in the absence of
intervenor’s objection, we would be required to review
petitioners’ standing.        Standing under Article III is
jurisdictional. If no petitioner has Article III standing, then this
court has no jurisdiction to consider these petitions. See, e.g.,
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Regardless of whether the parties raised the issue, we have “an
independent obligation to be sure of our jurisdiction.” Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). Therefore,
before we even consider the merits of the petitions, we must
determine whether any petitioner has standing to bring them to
court.

                                A.

    As the Supreme Court has declared, “the law of Art. III
standing is built on . . . the idea of separation of powers.” Allen
v. Wright, 468 U.S. 737, 752 (1984). The application of the
standing doctrine, along with other jurisdictional requirements,
ensures that federal courts act only within their constitutionally
prescribed role: resolving “Cases” and “Controversies,” U.S.
CONST. art. III, § 2, cl. 1, “those disputes which are
appropriately resolved through the judicial process,” Lujan, 504
                                 7

U.S. at 560. See also Fla. Audubon Soc’y v. Bentsen, 94 F.3d
658, 663 (D.C. Cir. 1996) (en banc). To establish Article III
standing, a party must establish three constitutional minima: (1)
that the party has suffered an “injury in fact,” (2) that the injury
is “fairly traceable” to the challenged action of the defendant,
and (3) that it is “likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Lujan, 504
U.S. at 560-61 (internal quotation marks, alterations, and
citations omitted).

     The party seeking to invoke the jurisdiction of the federal
court “bears the burden of establishing these elements.” Id. at
561. To do so, it must “support each element of its claim to
standing ‘by affidavit or other evidence.’” Sierra Club, 292
F.3d at 899 (quoting Lujan, 504 U.S. at 561). On direct review
of agency action, it must provide that support in its opening
brief. Public Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1289 (D.C.
Cir. 2007). If the petitioner’s standing is self-evident (as when
the petitioner is the object of an administrative action), “no
evidence outside the administrative record is necessary.” Sierra
Club, 292 F.3d at 900. But when the administrative record fails
to establish a substantial probability as to any element of
standing, “the petitioner must supplement the record to the
extent necessary to explain and substantiate its entitlement to
judicial review.” Id.

                                B.

       As an initial matter, we note that each separate petitioner
in this case is a trade association. Each petitions for review of
EPA’s waiver decisions on behalf of its members, e.g., car
manufacturers, petroleum refiners, and cereal distributors. This
is not in itself a problem. An association has standing to sue on
its members’ behalf if it can show that (1) a member “would
have standing to sue in [its] own right,” (2) “the interests the
                                8

association seeks to protect are germane to its purpose,” and (3)
“neither the claim asserted nor the relief requested requires that
an individual member of the association participate in the
lawsuit.” Id. at 898. We have no reason to believe any
petitioners fail to meet the latter two requirements. We
therefore need consider only whether any petitioner association
has demonstrated that any of its members would have standing
to sue in its own right.

     We need not conclude that all petitioners have standing. As
all petitioners raise the same issues, if we determine that even
one of the petitioners has Article III standing, we will then have
established our jurisdiction to consider the merits of the
petitions. See, e.g., Military Toxics Project v. EPA, 146 F.3d
948, 954 (D.C. Cir. 1998). Standing is not self-evident for any
of the entities Petitioners represent. EPA’s waiver decisions do
not on their face directly impose regulatory restrictions, costs,
or other burdens on any of these types of entities. This, of
course, makes Petitioners’ task more difficult. “The Supreme
Court has stated that standing is ‘substantially more difficult to
establish’ where, as here, the parties invoking federal
jurisdiction are not ‘the object of the government action or
inaction’ they challenge.” See Public Citizen, 489 F.3d at 1289
(quoting Lujan, 504 U.S. at 562.). Petitioners have to
demonstrate that EPA’s actions—in particular, approving E15
via partial waivers—have caused any one of their members an
injury in fact for which we can provide redress in this action.
Each industry group advances a theory of standing, but none is
in fact adequate to meet the burden of establishing standing
under Article III.

               1. The Engine-Products Group

    The engine-products group advances a convoluted theory of
standing. It begins with the assertion that its members
                                9

manufacture cars, boats, and power equipment with engines not
made for, certified, or warranted to use ethanol blends greater
than E10. As a result of EPA’s partial waivers, they assert, E15
will enter the fuel market and consumers will use it in their
products. Such use, the engine manufacturers claim, “may”
harm their engines and emission-control devices and systems.
Pet’rs Br. at 17. This will supposedly subject the engine
manufacturers to liability: consumers may bring warranty and
safety-related claims against the manufacturers under state or
federal law, and the government may impose a recall of some
engines or vehicles.

    This hypothetical chain of events fails as a showing of
Article III standing. An Article III injury in fact must be “(i)
‘concrete and particularized’ rather than abstract or generalized,
and (ii) ‘actual or imminent’ rather than remote, speculative,
conjectural or hypothetical.” In re Navy Chaplaincy, 534 F.3d
756, 759–60 (D.C. Cir. 2008). It must also be “substantially
probable” that the challenged agency action caused that injury.
See Fla. Audubon, 94 F.3d at 663 (citing Kurtz v. Baker, 829
F.2d 1133, 1144 (D.C. Cir. 1987)). The engine-products group’s
theory of standing meets neither of these requirements.

     To begin with, the engine manufacturers provide almost no
support for their assertion that E15 “may” damage the engines
they have sold, subjecting them to liability. They suggest that
damage may occur via two avenues. First, they contend that
consumers will use E15 in the model-year 2001 and newer light-
duty vehicles and engines for which it has been approved, and
that E15 may harm those engines (contrary to EPA’s findings).
They support this assertion, however, with a single reference to
internal testing by Mercedes-Benz documenting a 2 percent hit
to fuel economy and “potential vehicle damage” from the use of
E15 in Mercedes vehicles. This is hardly evidence of a
substantial probability that E15 will cause engine harm.
                                10

     Second, the engine-products group maintains that
consumers will “misfuel,” i.e., fuel non-approved vehicles and
equipment with E15, and that E15 will cause damage to and
emissions failures in such engines, including boat engines and
power equipment motors, for which engine manufacturers may
incur liability. This convoluted theory of causation will not
meet Petitioners’ burden. It is well established that “[c]ausation,
or ‘traceability,’ examines whether it is substantially probable
that the challenged acts of the defendant, not of some absent
third party, will cause the particularized injury of the plaintiff.”
Fla. Audubon Soc’y v. Bentsen, 94 F.3d at 663 (citing Allen v.
Wright, 468 U.S. 737, 753 n.19 (1984)) (other citations omitted).
As in Florida Audubon, Allen v. Wright, and numerous other
cases cited in Florida Audubon, any injury to the engine-product
petitioners—speculative at best—depends upon the acts of third
parties not before the court. If the contemplated injury is to
occur at all, it will require that consumers use the fuel in engines
for which it is neither designed nor approved, suffer damages to
those engines as a result, and bring successful warranty or other
liability lawsuits against engine-products petitioners. These
petitioners attempt to drag their claims across the causation
threshold by simply listing federal laws that either impose
liability for emission warranty claims, see 42 U.S.C. § 7541, or
provide for recall of nonroad engines and vehicles that fail to
meet emission standards, id. § 7547. This is not sufficient. That
a theoretical possibility of lawsuits exists does not establish the
required probability that the third parties will misfuel in the
fashion posited by petitioners, then bring the lawsuits, then
prevail. The last link is particularly problematic; the engine-
products petitioners have failed to point to any grounds for a
meritorious suit against them. As they admit, Pet’rs’ Br. at 18,
their engines are not warranted for E15, nor is it clear why
manufacturers would be liable for damages from consumer-
induced misfueling. As for their recall theory, they have failed
to establish any probability that the government would recall
                                11

engines because third parties had misfueled. This leaves yet
another weak link in their causative chain, especially given the
limited circumstances in which manufacturers are generally
subject to a recall, see Chrysler Corp. v. EPA, 631 F.2d 865, 896
(D.C. Cir. 1980).

     To reiterate what we noted earlier in this discussion,
“[T]he ‘case or controversy’ limitation of Article III still
requires that a federal court act only to redress injury that fairly
can be traced to the challenged action of the defendant, and not
injury that results from the independent action of some third
party not before the court.” Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 41 (1976). The engine-products group has
not established standing to bring these petitions.

                   2. The Petroleum Group

     The petroleum group includes associations that represent
refiners and importers, which produce petroleum products, as
well as “downstream” entities like fuel blenders and terminals,
which handle, store, or transfer those products. The petroleum
group asserts that both groups suffer an injury in fact traceable
to EPA’s waiver decisions. It argues that EPA’s partial approval
of the introduction of E15 into commerce effectively forces
refiners and importers to actually introduce E15 into commerce
because they are obligated to meet the renewable fuel
requirements of the RFS. They further assert that the
downstream entities will have to accommodate this new fuel
type. Both sets of entities will incur substantial costs as a result
of taking on E15, including “special fuel production,
transportation, and fuel segregation efforts.” Pet’rs’ Br. at 19.
Further costs will come from the “new compliance surveys and
fuel pump dispenser labeling” required by the E15 waiver
decisions. Id. In addition, these entities will purportedly face
the liability risks that come with producing a fuel that they
                               12

contend will cause damage to misfueled vehicles.

      This theory fails to establish standing. We cannot fairly
trace the petroleum group’s asserted injuries in fact—the new
costs and liabilities of introducing and dealing with E15—to the
administrative action under review in this case. That action,
EPA’s approval of the introduction of E15 for use in certain
vehicles and engines, does not force, require, or even encourage
fuel manufacturers or any related entity to introduce the new
fuel; it simply permits them to do so by waiving the CAA’s
prohibition on introducing a new fuel that is not substantially
similar to the fuel used to certify vehicles and engines under
their applicable emission standards, see 42 U.S.C. § 7545(f)(4).
In short, the only real effect of EPA’s partial waivers is to
provide fuel manufacturers the option to introduce a new fuel,
E15. To the extent the petroleum group’s members implement
that option voluntarily, any injury they incur as a result is a
“self-inflicted harm” not fairly traceable to the challenged
government conduct. See, e.g., Pub. Citizen, 489 F.3d at 1290
(citing Nat’l Family Planning & Reproductive Health Ass’n, Inc.
v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006)); Petro-Chem
Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 1989).

      Petitioners maintain that the new fuel choice provided by
the partial waivers is no real choice at all. They stress that if
EPA makes E15 an option (as it did), “refiners and importers
will necessarily have to introduce E15 into commerce” to meet
their volume requirements under the RFS. Even if we were to
consider the refiners’ and importers’ decision to introduce E15
as forced rather than voluntary, it would be “forced” (under their
theory) not by the availability of E15 (which is the only effect
of the partial waivers) but rather by the RFS, which obliges
manufacturers to introduce certain volumes of renewable fuel.
In other words, if the injuries of refiners and importers are
traceable to anything other than their own choice to incur them,
                                13

it is to the RFS, not to the partial waivers they challenge here.

      In any event, Petitioners have not established that refiners
and importers will indeed have to introduce E15 to meet their
volume requirements under the RFS. The partial waivers
provide obligated parties with a new option for meeting those
requirements, but the RFS does not mandate that obligated
parties use E15 or any other particular product to meet its
requirements. In fact, as noted above, refiners and importers
may only use a capped amount of corn-based ethanol to meet
their RFS obligations, and they are already nearing that cap.
They have provided no reason why they could not instead use a
different type of fuel to meet those obligations. Of course, if
that reason is cost—either the costs of research and development
of fuels, or the costs of introduction of such a fuel— then their
choice to instead use E15 would be a decision grounded in
economics, not one forced on them by the RFS and most
certainly not by the partial waivers. Moreover, Petitioners
themselves indicated that there are still other options besides
using E15: “The RFS includes mechanisms by which the EPA
Administrator may waive the total volume of renewable fuel for
any given year or waive requirements for certain renewable
fuels.” Pet’rs’ Br. at 5 (citing 42 U.S.C. § 7545(o)(7)(A)(i)-(ii),
(D), (E), (F)). While EPA may decline to waive the RFS
requirements, lobbying the Administrator to do so is another
option at Petitioners’ disposal. In sum, Petitioners have not
demonstrated that the partial E15 waivers provide refiners and
importers with a Hobson’s choice (introduce E15 or violate the
RFS) rather than a real one, such that the costs they would
sustain by introducing E15 could be considered “forced by” or
traceable to the challenged agency action.

    Petitioners offer a related argument centered on the
downstream parties. These parties own infrastructure (e.g.,
deepwater, barge, and pipeline terminals) that aids in the
                                 14

transfer, handling, and blending of petroleum products. Pet’rs’
Br. at x–xi, 19. Regardless of whether the E15 waiver can be
said to “cause” petroleum refiners and importers to begin
introducing E15, Petitioners suggest that they will introduce it
given their RFS obligations, and downstream entities will have
to expend significant resources to blend and otherwise deal with
the E15 the refiners and importers choose to introduce. In this
way, according to Petitioners, “EPA’s partial E15 waiver
therefore will require these organizations to expend enormous
resources to blend and introduce E15 into the market.” Pet’rs’
Br. at 19.

       With this argument, Petitioners again wrongly identify the
actual cause of downstream entities’ choice to incur the costs of
handling E15. Neither the RFS nor the partial E15 waivers
“require” downstream entities to have anything to do with E15.
If they face any pressure to handle E15, it is likely economic in
nature. Downstream parties very well might lose business if
they decline to blend or otherwise deal with E15, but that makes
the choice to handle E15 one they make in their own self-
interest, not one forced by any particular administrative action.
In this way, Petitioners’ argument is much like one we rejected
in Petro-Chem Processing v. EPA, 866 F.2d at 438. In that case,
the Hazardous Waste Treatment Council (HWTC) challenged
EPA regulation of hazardous waste disposal in salt domes that
HWTC argued was too lax. HWTC asserted that its members
who provide cleanup services or waste brokering would be
“forced” to use geologic repositories (salt domes) under the lax
EPA standards and their use of unsafe methods would risk
greater potential liability. The court rejected this theory of
standing. We pointed out that this potential liability, “insofar as
it is incurred voluntarily, is not an injury that fairly can be traced
to the challenged action.” Id. (internal quotation marks
omitted). The members who used salt domes could avoid the
potential liability by choosing safer methods than required by
                                   15

EPA. If they chose the unsafe methods because of “competitive
pressures,” they would presumably do so “in their own self-
interest.” Id. The resulting injury would thus be “self-inflicted,
… so completely due to the [complainants’] own fault as to
break the causal chain.” Id. (internal quotation marks omitted).
So too here.

      All of this is to say that Petitioners’ attempt to draw a
causal link between the E15 waivers they challenge and the
costs they would incur by introducing E15 ultimately rings
hollow. If anything is “forcing” these entities to incur the costs
of introducing a new fuel, it is the obligations set by the RFS,
competitive pressures, or some combination thereof. EPA’s
partial waivers simply provide a new choice of fuel that
manufacturers may produce. There is not a cause of those costs
providing the petroleum group with standing.

                        3. The Food Group

      The food group’s members produce, market, and distribute
food products that require corn. This petitioner group suggests
that EPA’s partial approval of E15 will increase the demand for
corn, which is currently used to produce most ethanol on the
market. This increased demand will, according to the food
group, increase the prices their members have to pay for corn.

     We need not decide here whether the food group has
established Article III standing with this theory because the
theory plainly fails to demonstrate prudential standing.1 While
we must find Article III standing before addressing the merits of
a case, see supra p. 6, “it is entirely proper to consider whether
there is prudential standing while leaving the question of

        1
           Chief Judge Sentelle would hold that the food group has neither
Article III nor prudential standing.
                                16

constitutional standing in doubt, as there is no mandated
‘sequencing of jurisdictional issues.’” Grand Council of Crees
(of Quebec) v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000)
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 575
(1999)).

       To demonstrate prudential standing, the food group “must
show that the interest it seeks to protect is arguably within the
zone of interests to be protected or regulated by the statute ... in
question” or by any provision “integral[ly] relat[ed]” to it. Nat'l
Petrochem. Refiners Ass'n v. EPA, 287 F.3d 1130, 1147 (D.C.
Cir. 2002) (per curiam) (internal quotation marks omitted). The
food petitioners have not made such a showing. They point out
only that their interests are protected by EISA, the legislation
that set forth the RFS, because EISA requires EPA to review,
among other things, “the impact of the use of renewable fuels on
... the price and supply of agricultural commodities ... and food
prices” when EPA sets renewable fuel volume requirements in
the future. 42 U.S.C. § 7545(o)(2)(B)(ii)(VI). However, the
statute Petitioners challenge here is the CAA’s fuel-waiver
provision, Section 211(f)(4)—not EISA.              Nor is EISA
“integral[ly] relat[ed] to Section 211(f)(4). Both statutes may
have fuel as their subject matter, and the RFS may have even
incentivized Growth Energy to apply for a waiver under Section
211(f)(4). But more is required to establish an “integral
relationship” between the statute a petitioner claims is protecting
its interests and the statute actually in question; otherwise, “the
zone-of-interests test could be ‘deprive[d] ... of virtually all
meaning.” Fed’n for Am. Immigration Reform, Inc. v. Reno, 93
F.3d 897, 903 (D.C. Cir. 1996) (quoting Air Courier Conference
of Am. v. Am. Postal Workers Union, 498 U.S. 517, 530 (1991)).
Hypothetical prudential standing to challenge action under EISA
does not give the food petitioners prudential standing to petition
for review of action taken pursuant to CAA Section 211(f)(4).
                              17

     The dissent relies on Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012), but that
decision neither changed the prudential-standing standard nor
has any particular applicability to the facts here. The food
group’s interest in low corn prices is much further removed from
a provision about cars and fuel than a neighboring land owner’s
interest is from a statute about land acquisition.

                       III. Conclusion

      For the above reasons, we hold that no petitioner has
standing to bring these claims. We therefore dismiss all
petitions for lack of jurisdiction.
     TATEL, Circuit Judge, concurring: I agree with the
dissent that the food group has Article III standing. See
Dissenting Op. at 4-6. I also agree with those circuits that
have held that prudential standing is non-jurisdictional. See id.
at 9-10 (collecting cases). This Circuit, however, has directly
held to the contrary. See, e.g., Steffan v. Perry, 41 F.3d 677,
697 (D.C. Cir. 1994) (“Prudential standing is of course, like
Article III standing, a jurisdictional concept.”); Animal Legal
Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir.
1994) (“Standing, whether constitutional or prudential, is a
jurisdictional issue which cannot be waived or conceded.”).
True, passing statements by subsequent panels may be in
some tension with these earlier decisions, see Dissenting Op.
at 10 n.4 (collecting cases), and in recent years the Supreme
Court has certainly criticized lower courts for overusing the
“jurisdictional” label, see id. at 7-8 (collecting cases). But
taken in context these cases are “too thin a reed,” id. at 9, to
permit this panel to depart from our clear prior holdings that
prudential standing is jurisdictional—no matter how much we
may think those decisions are wrong or that the Supreme
Court may be preparing to hold otherwise. See Rasul v.
Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (“A panel of this
court . . . must adhere to the law of our circuit unless that
law conflicts with a decision of the Supreme Court.” (citing
LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en
banc))); United States v. Williams, 194 F.3d 100, 107 (D.C.
Cir. 1999) (circuit precedent binding unless “eviscerat[ed]” by
subsequent Supreme Court decisions), abrogated on other
grounds by Apprendi v. New Jersey, 530 U.S. 466 (2000).
      KAVANAUGH, Circuit Judge, dissenting: Federal law
establishes a renewable fuel mandate that requires gasoline
producers to introduce significant amounts of renewable fuel
(such as ethanol) into the Nation’s gasoline supply. To
maintain statutory clean air standards, however, EPA is
required to approve new fuels and fuel additives such as
ethanol, and EPA may do so only when the new fuel would
not cause any car models made after 1974 to violate federal
emissions standards. EPA had previously approved use of
E10, gasoline with up to 10% ethanol, for use in cars. But the
requirement set by the statutory renewable fuel mandate could
not be reached solely with E10. Ethanol manufacturers then
petitioned EPA to exercise its statutory waiver authority to
allow use of E15, gasoline with up to 15% ethanol. In order
to issue the waiver under the statute, EPA had to find that E15
would not cause any car models made after 1974 to fail to
meet emissions standards. EPA found that E15 could cause
emissions failures in some cars made after 1974 (namely, in
cars made between 1975 and 2000). Nonetheless, EPA still
granted the waiver. For the first time ever, EPA granted what
it termed a “partial waiver,” meaning that the waiver allowed
E15 use only in cars made after 2000.

     In this suit, members of the food industry and the
petroleum industry contend that EPA’s E15 waiver is illegal.
The food group is suing because, as a result of EPA’s E15
waiver, ethanol production will increase and demand for corn
(a necessary raw material for ethanol) will rise significantly.
In turn, corn prices will rise. Therefore, food producers,
which compete directly with ethanol producers in the
upstream market for purchasing corn, will have to pay more
for corn. The petroleum group is suing because, as a result of
EPA’s E15 waiver and the statutory renewable fuel mandate,
those in the petroleum industry now must refine, sell,
transport, and store E15, incurring significant costs to do so.
                              2
     Despite the fact that two enormous American industries
will be palpably and negatively affected by EPA’s allegedly
illegal E15 waiver, the majority opinion tosses the case for
lack of standing. Judge Tatel and I agree that the food group
has Article III standing. But the majority opinion finds that
the food group is not an aggrieved party (that is, does not
have prudential standing) for purposes of the Administrative
Procedure Act. And the majority opinion concludes that the
petroleum group’s injury is not caused by EPA’s E15 waiver
decision and that the petroleum group thus does not have
Article III standing.

    This suit may proceed if either the food group or the
petroleum group has standing. In my view, both have
standing.

     The food group has Article III standing because the E15
waiver, particularly in conjunction with the statutory
renewable fuel mandate, will increase the prices the food
group must pay for corn. And the food group’s prudential
standing under the APA is not contested by EPA. That
matters because prudential standing (unlike Article III
standing) is not jurisdictional, meaning that prudential
standing has been forfeited by EPA and is thus not properly
before the Court. In any event, the food group easily clears
the low bar for prudential standing under the APA.

     The petroleum group has Article III standing because the
E15 waiver, in conjunction with the statutory renewable fuel
mandate, will require some petroleum companies to refine,
sell, transport, or store E15, imposing significant costs. And
even if prudential standing were not forfeited, the petroleum
group is a party regulated under the statutory waiver
                                 3
provision; therefore, the petroleum group’s prudential
standing under the APA is undisputed.1

     On the merits, I conclude that the E15 waiver violates the
statute. The waiver might be good policy; if so, Congress has
the power to enact a new law permitting E15. But under the
statute as currently written, EPA lacks authority for the
waiver. I would therefore grant the petition for review and
vacate EPA’s E15 waiver decision. I respectfully dissent.

                                  I

     The Constitution limits the jurisdiction of federal courts
to “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl.
1. One aspect of the case or controversy requirement is
standing. To sue in federal court, a plaintiff must demonstrate
Article III standing, which consists of three requirements: (1)
injury in fact – an invasion of a legally protected interest that
is concrete and particularized, and actual or imminent; (2)
causation – a fairly traceable connection between the injury
and the challenged conduct; and (3) redressability – a
likelihood that the injury will be redressed by a favorable
decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). In the regulatory context, standing has not
been limited to those directly regulated by an agency. Rather,
under settled standing case law, those who suffer injury as a
result of an agency’s allegedly illegal regulation of someone
else can still have standing, although the analysis in such
cases is tricky (and frankly rather unpredictable).2 Article III

     1
       Because I find that either of these two groups has standing, I
do not address the standing of the engine products group.
     2
       When I refer to the food group and the petroleum group
throughout this opinion, I am using shorthand to refer to the many
such food and petroleum trade organizations and individual
businesses that have sued here. See also Maj. Op. at 7-8 (whether
                               4
standing is jurisdictional, meaning courts must consider the
issue even if the defendant or respondent does not assert that
the plaintiff or petitioner lacks Article III standing.

     In addition, the Administrative Procedure Act’s general
cause of action for challenging agency action extends only to
parties “aggrieved” by the agency action. See 5 U.S.C. § 702.
The cause of action’s limitation to “aggrieved” parties is
referred to (somewhat loosely and imprecisely) as prudential
standing. As explained more fully below, prudential standing
is not jurisdictional, meaning that it can be forfeited and need
not be considered by the court if the defendant or respondent
does not assert it.

                               A

     First, I will explain why the food group has standing. For
its part, EPA has not contested the food group’s Article III
and prudential standing. A majority of the Court – Judge
Tatel and I – conclude that the food group has Article III
standing. A different majority – Chief Judge Sentelle and
Judge Tatel – conclude, however, that the food group lacks
prudential standing to challenge EPA’s E15 waiver.

     The food group includes producers of processed food
made with corn and those who raise livestock fed with corn.
It is hard to overestimate the significance of corn to the
American food industry. And petitioners’ submissions to
EPA and this Court reveal the following about the effects of
EPA’s E15 waiver on the food industry: In E10, up to 10% of
gasoline is made up of ethanol. In E15, up to 15% of gasoline
is made up of ethanol. That’s a 50% increase in the amount
of ethanol used. In hard numbers, with only E10 on the

trade organization has standing turns on whether any individual
member has standing).
                               5
market, 14 billion gallons of ethanol could be produced each
year for the Nation’s gasoline supply. With E15 on the
market, 21 billion gallons of ethanol can be produced each
year. That’s an additional 7 billion gallons of ethanol
annually produced for use in the U.S. gasoline supply. As a
result of the E15 waiver, there is likely – indeed, nearly
certain in the current market – to be a significant increase in
demand for corn to produce ethanol. The extra demand
means that corn producers can charge a higher price.
Therefore, the E15 waiver will likely cause higher corn
prices, and members of the food group that depend on corn
will be injured. See generally, e.g., Advanced Economic
Solutions, Implications for US Corn Availability Under a
Higher Blending Rate for Ethanol (June 2009), J.A. 604.

     This is Economics 101 and requires no elaborate chain of
reasoning. It is no surprise that EPA – which is typically
quite aggressive in asserting standing objections in lawsuits
against it – has not contested the food group’s standing in this
case. The food group has standing under Article III.

      Even apart from that analysis, the food group has Article
III standing based on our competitor standing cases. When an
agency illegally regulates an entity’s competitor in a way that
harms the entity – for example, by loosening regulation of the
competitor – we have said that the entity has Article III
standing to challenge the allegedly illegal regulation. See,
e.g., Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010)
(“The doctrine of competitor standing addresses the first
requirement [of Article III standing] by recognizing that
economic actors suffer an injury in fact when agencies lift
regulatory restrictions on their competitors or otherwise allow
increased competition against them.”) (internal quotation
marks and brackets omitted); Honeywell International Inc. v.
EPA, 374 F.3d 1363, 1369 (D.C. Cir. 2004) (“it is well
                              6
established that parties suffer cognizable injury under Article
III when an agency lifts regulatory restrictions on their
competitors or otherwise allows increased competition”)
(internal quotation marks and brackets omitted); Louisiana
Energy & Power Authority v. FERC, 141 F.3d 364, 367 (D.C.
Cir. 1998) (“We repeatedly have held that parties suffer
constitutional injury in fact when agencies lift regulatory
restrictions on their competitors or otherwise allow increased
competition.”).      Here, EPA’s E15 waiver loosens a
prohibition on gasoline and ethanol producers and thereby
harms entities such as the food group that directly compete
with gasoline and ethanol producers in the upstream market
for purchase of corn. See Sherley, 610 F.3d at 72-74
(similarly finding doctors have competitor standing after
agency loosened restrictions and thereby allowed increased
competition in upstream market for grants that fund research).
Our competitor standing precedents thus independently
support Article III standing for the food group.

    A majority of the Court – Judge Tatel and I – agree that
the food group has Article III standing. But Chief Judge
Sentelle and Judge Tatel conclude that the food group lacks
prudential standing.

     Contrary to their majority opinion, I would conclude that
prudential standing likewise poses no barrier for the food
group. To begin with, EPA did not raise prudential standing
as a defense to this lawsuit. That’s critically important
because prudential standing is not jurisdictional and thus can
be forfeited when the defendant or respondent fails to assert
it. Because EPA did not challenge the food group’s
prudential standing, any prudential standing objection is
forfeited.
                                   7
     The majority opinion concludes that prudential standing
is jurisdictional. See Maj. Op. at 15-17 (rejecting food
group’s claims solely on prudential standing grounds); Maj.
Op. at 2, 17 (dismissing all claims, including those of food
group, for lack of jurisdiction).

     In my view, Supreme Court precedent makes clear,
however, that prudential standing is not jurisdictional.
Prudential standing concerns who may sue; it is an aspect of
the cause of action that stems from the Administrative
Procedure Act’s limiting its cause of action to “aggrieved”
parties. See Bond v. United States, 131 S. Ct. 2355, 2362-63
(2011); Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 97 & n.2 (1998).3 Prudential standing is not
jurisdictional because prudential standing has not been ranked
by Congress as jurisdictional and is not a limitation on a
court’s authority to hear a case, as opposed to a limitation on
who may sue to challenge a particular agency action. See
Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243-44
(2010).

     In recent years, the terminology of jurisdiction has been
put under a microscope at the Supreme Court. And the Court
has not liked what it has observed – namely, sloppy and
profligate use of the term “jurisdiction” by lower courts and,
at times in the past, the Supreme Court itself. These recent
Supreme Court cases have significantly tightened and focused
the analysis governing when a statutory requirement is
jurisdictional. In Reed Elsevier, for example, the Court
emphasized that a statutory requirement is jurisdictional when
it speaks to the power of a court to hear a case rather than to

     3
       The APA provides: “A person suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial
review thereof.” 5 U.S.C. § 702.
                              8
the rights of or restrictions on the parties. Id. at 1243; see
also Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)
(“Recognizing our less than meticulous use of the term in the
past, we have pressed a stricter distinction between truly
jurisdictional rules, which govern a court’s adjudicatory
authority, and nonjurisdictional claim-processing rules, which
do not.”) (internal quotation marks omitted); Henderson ex
rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011)
(“We have urged that a rule should not be referred to as
jurisdictional unless it governs a court’s adjudicatory
capacity, that is, its subject-matter or personal jurisdiction.
Other rules, even if important and mandatory, we have said,
should not be given the jurisdictional brand.”) (citations
omitted); Bowles v. Russell, 551 U.S. 205, 213 (2007) (“the
notion of subject-matter jurisdiction obviously extends to
classes of cases falling within a court’s adjudicatory
authority”) (internal quotation marks and ellipsis omitted);
Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006)
(“Jurisdiction, this Court has observed, is a word of many, too
many, meanings.”) (internal quotation marks omitted);
Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“Clarity would
be facilitated if courts and litigants used the label
‘jurisdictional’ not for claim-processing rules, but only for
prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling
within a court’s adjudicatory authority.”).

     The APA cause of action – which speaks in terms of
giving “aggrieved” parties a cause of action – does not
address the power of the court to hear the case. Therefore, it
is quite obviously not jurisdictional under the recent Supreme
Court precedents.

    Indeed, although the Supreme Court has not yet directly
addressed whether prudential standing is jurisdictional, the
                               9
Court has suggested that it is not. In Tenet v. Doe, the Court
noted that prudential standing is a “threshold question” that
“may be resolved before addressing jurisdiction.” 544 U.S.
1, 7 n.4 (2005) (emphasis added). While that snippet alone
may be too thin a reed on which to base a definitive
conclusion, it certainly is consistent with the thrust of the
recent Supreme Court precedents on jurisdiction and points us
further in the direction of saying that prudential standing is
not jurisdictional.

     Several courts of appeals have addressed the prudential
standing issue in recent years – that is, since the Supreme
Court’s intensified focus on proper use of the term
jurisdiction. And those courts likewise have determined that
prudential standing is not jurisdictional. See, e.g., Board of
Mississippi Levee Commissioners v. EPA, 674 F.3d 409, 417
(5th Cir. 2012) (“Unlike constitutional standing, prudential
standing arguments may be waived.”); Independent Living
Center of Southern California, Inc. v. Shewry, 543 F.3d 1050,
1065 n.17 (9th Cir. 2008) (“Unlike the Article III standing
inquiry, whether ILC maintains prudential standing is not a
jurisdictional limitation on our review. By failing to articulate
any argument challenging ILC’s prudential standing, the
Director has waived that argument.”) (citation and internal
quotation marks omitted); Rawoof v. Texor Petroleum Co.,
521 F.3d 750, 756 (7th Cir. 2008) (“Prudential-standing
doctrine is not jurisdictional in the sense that Article III
standing is.”) (internal quotation marks omitted); Finstuen v.
Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007) (“Prudential
standing is not jurisdictional in the same sense as Article III
standing. . . . We could therefore decline to address this
argument, as it was not raised in the court below.”); Gilda
Industries, Inc. v. United States, 446 F.3d 1271, 1280 (Fed.
Cir. 2006) (“In the end, we do not need to reach or decide the
question whether Gilda satisfies the standing requirements of
                                  10
the Administrative Procedure Act, because the government
did not contend in its brief that Gilda’s complaint should be
barred by the zone of interests test. The government has thus
waived that argument.”); see also, e.g., American Iron & Steel
Institute v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999)
(“We can pretermit the more difficult question regarding
whether the Doctors’ members’ interests fall within the zone
of interests protected by the OSH Act because prudential
standing is flexible and not jurisdictional in nature.”)
(citations omitted).4


     4
        Some older cases from this Court said that prudential
standing was jurisdictional. See, e.g., Animal Legal Defense Fund,
Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994). But our more
recent cases have indicated that prudential standing is not
jurisdictional. See American Chiropractic Ass’n v. Leavitt, 431
F.3d 812, 816 (D.C. Cir. 2005) (contrasting “the less-than-
demanding zone-of-interest test” with “[t]he jurisdictional
question”); Toca Producers v. FERC, 411 F.3d 262, 265 n.* (D.C.
Cir. 2005) (“the prudential standing doctrine, like the abstention
doctrine, represents the sort of threshold question that may be
resolved before addressing jurisdiction”) (internal quotation marks
and brackets omitted); Amgen Inc. v. Smith, 357 F.3d 103, 111
(D.C. Cir. 2004) (“That Amgen has prudential standing does not
resolve this appeal, however. Another threshold issue is whether
the court has jurisdiction to entertain Amgen’s complaint.”); see
also Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir. 2009)
(Ginsburg, J., concurring) (citing Tenet, 544 U.S. at 6 n.4).
      To the extent older cases assumed prudential standing to be
jurisdictional, that assumption is no longer correct after Supreme
Court cases such as Reed Elsevier. There, the Supreme Court
expressly “encouraged federal courts” to pay better attention to the
distinction between jurisdictional and non-jurisdictional statutory
requirements and stated that a statutory limitation generally is
jurisdictional only if it speaks to the power of the courts. 130 S. Ct.
at 1243-44; see also Gonzalez, 132 S. Ct. at 648 (“Courts, we have
                                  11
     In short, respondent EPA has not raised prudential
standing. EPA has thus forfeited the argument. Contrary to
the weight of authority and the direction marked by the
Supreme Court, the majority opinion here concludes that
prudential standing is jurisdictional. See Maj. Op. at 2, 15-17.
The majority opinion thus creates a deep and important circuit
split on this important issue. In my respectful view, the
Supreme Court’s recent decisions on jurisdiction show that
the majority opinion is incorrect on this point.5



said, should not lightly attach those drastic consequences to limits
Congress has enacted.”) (internal quotation marks omitted);
Kontrick, 540 U.S. at 455 (“Clarity would be facilitated if courts
and litigants used the label ‘jurisdictional’ not for claim-processing
rules, but only for prescriptions delineating the classes of cases
(subject-matter jurisdiction) and the persons (personal jurisdiction)
falling within a court’s adjudicatory authority.”).
      I certainly respect Judge Tatel’s different view on the status of
this Court’s older precedents on this issue. But I believe our duty
here is to obey the clear charge given by the Supreme Court rather
than to cling to a stale slice of our precedent – precedent which not
only has been undermined by subsequent Supreme Court decisions
but also has not been followed by our Court in several recent cases.
      5
        To be sure, intervenor Growth Energy has raised prudential
standing even though EPA did not. But this Court has repeatedly
held that intervenors generally may not raise arguments not raised
by the parties. See, e.g., Illinois Bell Telephone Co. v. FCC, 911
F.2d 776, 786 (D.C. Cir. 1990). There is no reason to depart from
that general rule here.
      Indeed, the rule preventing expansion of the case by
intervenors serves important purposes, especially in our
administrative law jurisprudence. The Government as defendant or
respondent may want to waive or forfeit certain non-jurisdictional,
non-merits threshold defenses so as to permit or obtain a ruling on
the merits. In our adversary legal system, an intervenor does not
and should not have the unilateral right to thwart the Government’s
                                 12
     Even if prudential standing were jurisdictional and we
therefore had to consider the issue notwithstanding EPA’s
failure to raise it, I would conclude that the food group has
prudential standing for either of two independent reasons.

       First, members of the food group are “aggrieved” parties.
To be “aggrieved” for purposes of the APA and to have
prudential standing, a party must be “arguably within the zone
of interests to be protected or regulated by the statute that he
says was violated.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)
(internal quotation marks omitted). The Supreme Court has
repeatedly emphasized that prudential standing is a low bar,
writing just a few months ago: “The prudential standing test
. . . is not meant to be especially demanding. . . . We do not
require any indication of congressional purpose to benefit the
would-be plaintiff. And we have always conspicuously
included the word ‘arguably’ in the test to indicate that the
benefit of any doubt goes to the plaintiff. The test forecloses
suit only when a plaintiff’s interests are so marginally related
to or inconsistent with the purposes implicit in the statute that
it cannot reasonably be assumed that Congress intended to
permit the suit.” Id. (footnote, citation, and some internal
quotation marks omitted).

     Importantly, in “determining whether a petitioner falls
within the zone of interests to be protected by a statute, we do
not look at the specific provision said to have been violated in
complete isolation, but rather in combination with other
provisions to which it bears an integral relationship.”
National Petrochemical & Refiners Ass’n v. EPA, 287 F.3d
1130, 1147 (D.C. Cir. 2002) (internal quotation marks and
brackets omitted); see also Clarke v. Securities Industry

ability to waive non-jurisdictional, non-merits threshold defenses to
suit.
                             13
Ass’n, 479 U.S. 388, 401 (1987) (“In considering whether the
‘zone of interest’ test provides or denies standing in these
cases, we first observe that the Comptroller’s argument
focuses too narrowly on 12 U. S. C. § 36, and does not
adequately place § 36 in the overall context of the National
Bank Act. As Data Processing demonstrates, we are not
limited to considering the statute under which respondents
sued, but may consider any provision that helps us to
understand Congress’ overall purposes in the National Bank
Act.”).

     Here, analysis of the overall statutory scheme shows that
the food group has prudential standing.           The Energy
Independence and Security Act of 2007 imposes a renewable
fuel mandate that requires introducing increasing amounts of
renewable fuel into the market every year. See 42 U.S.C.
§ 7545(o)(2)(B)(i)(I). The Act’s renewable fuel mandate
expressly commands EPA to take account of the effect on
“food prices” – that is, the price of corn. 42 U.S.C.
§ 7545(o)(2)(B)(ii)(VI). The balance Congress struck in the
renewable fuel mandate thus expressly incorporates effects on
food prices. At the same time, another statutory provision –
in the same section of the U.S. Code – requires EPA to review
and approve renewable fuel additives such as ethanol to make
sure the fuel complies with clean air standards. Those
statutory provisions together reflect a balance among the
interests of corn farmers, the petroleum industry, the food
industry, and the environment, among other interests.
Because the E15 waiver is necessary – at least in the current
market – to effectuate the statutory renewable fuel mandate,
and because the food group is explicitly within the zone of
                                 14
interests for the renewable fuel mandate, the food group is in
the zone of interests for purposes of this suit.6

     That conclusion is fortified by the Supreme Court’s
decision just a few months ago in Match-E-Be-Nash-She-
Wish Band, 132 S. Ct. at 2210-12. There, a residential
property owner claimed that the Interior Department violated
federal law – the Indian Reorganization Act – when it
acquired a parcel of land from someone else for use by an
Indian tribe as a casino. See id. at 2202-03. Perhaps needless
to say, but the Indian Reorganization Act was not designed to
benefit or regulate a property owner who objects when the
Federal Government acquires another property owner’s land
in order to help Indians. The Supreme Court nonetheless
concluded that prudential standing was satisfied. When the
“Secretary obtains land for Indians” under this statute, “she
does not do so in a vacuum. Rather, she takes title to
properties with at least one eye directed toward how tribes
will use those lands to support economic development.” Id. at
2211. Although the statute in question “specifically addresses
only land acquisition,” decisions under the statute “are closely
enough and often enough entwined with considerations of
land use to make that difference immaterial.” Id. at 2211-12.
“And so neighbors to the use (like Patchak) are reasonable –
indeed, predictable – challengers of the Secretary’s decisions:
Their interests, whether economic, environmental, or
aesthetic, come within § 465’s regulatory ambit.” Id. at 2212.


     6
       One respected commentator has summarized the Supreme
Court’s zone of interest precedents as follows: “An injured plaintiff
has standing under the APA unless Congress intended to preclude
judicial review at the behest of parties in plaintiff’s class.” 3
RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 16.9,
at 1521 (5th ed. 2010). The statutes at issue here certainly do not
reveal any such “intent to preclude” suits by the food group.
                              15
     Here, EPA’s waiver decisions were similarly made with
“at least one eye” toward the renewable fuel mandate. EPA
acknowledged as much when proposing the E15 waiver. See
Notice of Receipt of a Clean Air Act Waiver Application to
Increase the Allowable Ethanol Content of Gasoline to 15
Percent; Request for Comment, 74 Fed. Reg. 18,228, 18,229
(Apr. 21, 2009) (“Growth Energy maintains that under the
renewable fuel program requirements of the Energy
Independence and Security Act of 2007, which is now
primarily satisfied by the use of ethanol in motor vehicle
gasoline, there exists a ‘blend barrier’ or ‘blendwall’ by which
motor vehicle gasoline in the U.S. essentially will become
saturated with ethanol at the 10 volume percent level very
soon. Growth Energy maintains that a necessary first step is
to increase the allowable amount of ethanol in motor vehicle
gasoline up to 15 percent (E15) in order to delay the
blendwall. . . . Growth Energy claims that the ‘blendwall’
will make those renewable fuel mandates unreachable and
that there are substantial environmental benefits associated
with higher ethanol blends.”). Because the renewable fuel
mandate in turn specifically takes account of food prices, it is
reasonable and predictable to think of members of the food
group as proper plaintiffs to challenge these waivers. What
this Court said in the decision that was affirmed in Match-E-
Be-Nash-She-Wish Band bears repeating: “As a practical
matter it would be very strange to deny Patchak standing in
this case. His stake in opposing the Band’s casino is intense
and obvious. The zone-of-interests test weeds out litigants
who lack a sufficient interest in the controversy, litigants
whose interests are so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the
suit. Patchak is surely not in that category.” Patchak v.
Salazar, 632 F.3d 702, 707 (D.C. Cir. 2011) (citation and
                              16
internal quotation marks omitted). So too with the food group
here.

     Second, even apart from that analysis of Congress’s
intent in these ethanol statutes, the food group has prudential
standing because it is complaining about an agency’s
allegedly illegal decision to loosen restrictions on a
competitor of the food group – namely, the petroleum group,
which competes against the food group in the upstream
market for purchasing corn. Prudential standing does not
prevent businesses from complaining about allegedly illegal
regulation of their competitors. On the contrary, that has been
the precise scenario in several Supreme Court cases where the
Court found prudential standing. See, e.g., Clarke, 479 U.S.
at 403 (“competitors who allege an injury that implicates the
policies of the National Bank Act are very reasonable
candidates to seek review of the Comptroller’s rulings”);
Ass’n of Data Processing Service Organizations, Inc. v.
Camp, 397 U.S. 150, 153-56 (1970) (sellers of data
processing service have prudential standing to challenge
decision allowing bank to compete in offering those services).
Our cases reveal that business competitors in upstream as well
as downstream markets have prudential standing. See, e.g.,
Sherley, 610 F.3d at 75 (“We conclude the Doctors have
prudential standing. The Dickey-Wicker Amendment clearly
limits the funding of research involving human embryos.
Because the Act can plausibly be interpreted to limit research
involving ESCs, the Doctors’ interest in preventing the NIH
from funding such research is not inconsistent with the
purposes of the Amendment. . . . [T]hat is all that matters.”).
Here, the food group directly competes with gasoline and
ethanol producers in the upstream market for purchasing corn
as a raw material. Based on those competitor standing
precedents as well, the food group has prudential standing.
                              17
                              B

     In the alternative, even if the food group does not have
standing, the petroleum group does. The petroleum group
consists of companies that produce, refine, transport, and
store gasoline, ethanol, and gasoline-ethanol blends. Under
the statutory renewable fuel mandate, petroleum companies
are forced to introduce a significant amount of renewable fuel
into the Nation’s gasoline supply. Using only E10 (gasoline
with up to 10% ethanol), the petroleum group companies
could not meet the statutory renewable fuel mandate. As a
result of the E15 waiver in conjunction with the renewable
fuel mandate, however, members of the petroleum group now
may – and as a factual matter, must – use E15 (gasoline with
up to 15% ethanol) in order to meet the renewable fuel
mandate. Those businesses will incur considerable economic
costs to modify their production, refining, transportation, and
storage methods. Those costs are clearly injuries for purposes
of standing. The only question here is whether those injuries
are caused by EPA’s E15 waiver.

     EPA has not challenged the petroleum group’s Article III
or prudential standing. Again, I find that silence a telling
indicator that the petroleum group has standing. Moreover,
the majority opinion does not dispute that the petroleum
group has prudential standing. But according to the majority
opinion, the petroleum group has not satisfied the causation
prong of Article III standing. The majority opinion holds that
the petroleum group’s injury is self-imposed and not caused
by EPA’s E15 waiver. I disagree.

    Causation requires injury that is “fairly traceable to the
defendant’s allegedly unlawful conduct.” Allen v. Wright,
468 U.S. 737, 751 (1984). It is of course true that causation
can be defeated by voluntary action – purely self-inflicted
                               18
injury is not fairly traceable to the actions of another. See
Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C.
Cir. 1989). But causation “is not defeated merely because the
plaintiff has in some sense contributed to his own injury”;
causation “is defeated only if it is concluded that the injury is
so completely due to the plaintiff’s own fault as to break the
causal chain.” 13A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3531.5 (3d ed. 2008).

     To show causation, the petroleum group must
demonstrate a “substantial probability” that the E15 will cause
at least one of its members to incur higher costs. Sierra Club
v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). To be sure, the
E15 waiver alone does not require the petroleum group to use
E15, make changes, and incur costs. But we cannot consider
the E15 waiver in some kind of isolation chamber. The
Energy Independence and Security Act imposes a renewable
fuel mandate that requires a certain amount of renewable fuel
to be introduced into the market every year. Pursuant to that
law, an increasing amount of renewable fuel such as ethanol –
rising to 36 billion gallons in 2022 – must be introduced into
the market. 42 U.S.C. § 7545(o)(2)(B)(i)(I). EPA regulations
identify petroleum refiners and importers who produce
gasoline as “obligated” parties – they are responsible for
introducing a percentage of the required amount into the
market each year. 40 C.F.R. § 80.1406; see also 40 C.F.R.
§§ 80.1407, 80.1427.

     Before the E15 waiver, however, petroleum producers
likely could not meet the requirement set by the statutory
renewable fuel mandate. Now that EPA has allowed E15
onto the market, producers likely can meet the renewable fuel
mandate – but they must produce E15 in order to do so. So
the combination of the renewable fuel mandate and the E15
waiver will force gasoline producers to produce E15. In tort
                               19
law, when two acts combine to create an injury, both acts are
considered causes of the injury. So it is here. In the current
market, there is at least a “substantial probability” that, in the
wake of the E15 waiver, gasoline producers will have to use
E15 in order to meet the renewable fuel mandate. And that’s
all that the petroleum group needs to show to carry its burden
on the causation issue.

     Put another way, the renewable fuel mandate directly
regulates gasoline producers and requires them to introduce a
certain amount of ethanol. But there was an impediment
preventing the producers from meeting that mandate. The
E15 waiver removed the impediment, meaning that gasoline
producers now will have to use E15 to meet the mandate’s
requirements. On those facts, the petroleum group’s injury is
not self-imposed, but is directly caused by the agency action
under review in this case. For those reasons, the petroleum
group has Article III standing to challenge the E15 waiver
provision.

     The majority opinion concludes otherwise. But the
fundamental flaw in the majority opinion’s reasoning is its
belief that petroleum producers could meet the renewable fuel
mandate without using E15. In the current market, the
majority opinion’s assumption is simply incorrect as a matter
of fact.

     One way to answer the causation question in this case is
to ask the following: In the real world, does the petroleum
industry have a realistic choice not to use E15 and still meet
the statutory renewable fuel mandate? The answer is no, and
                                  20
intervenor Growth Energy’s claim to the contrary seems
rooted in fantasy.7

     As to prudential standing for the petroleum group, EPA
does not raise the issue, meaning again that it’s forfeited. In
any event, the majority opinion itself does not dispute that the
petroleum group is in the zone of interests and has prudential
standing. Petroleum producers are directly regulated parties.
And parties directly regulated by a statute are within that
statute’s zone of interest. Thus, it is undisputed and
indisputable that the petroleum group has prudential standing.

                                  II

     Having found that there is standing, I turn to the merits of
this case. The merits are not close. In granting the E15
partial waiver, EPA ran roughshod over the relevant statutory
limits.

     Section 211(f)(1) of the Clean Air Act prohibits
manufacturers of fuel or fuel additives from introducing new
fuels or fuel additives into commerce for use in car models
made after 1974, unless the new fuel or fuel additive is
“substantially similar” to certain fuels or fuel additives
already in use. 42 U.S.C. § 7545(f)(1)(B). All agree that E15

     7
        Under the majority opinion’s approach, it appears that a
citizen who breathes air (or at least a citizen who has breathing
problems) would have standing to challenge the E15 waiver.
That’s because the E15 waiver will cause emissions that will
negatively affect air quality. There is of course no such petitioner
involved in this suit. But standing law protects economic interests
as well as health interests. And the economic interests of the food
and petroleum groups are palpably and significantly affected by the
E15 waiver, just as are the health interests of citizens with breathing
issues.
                               21
is not substantially similar to fuels already in use. But Section
211(f)(4) allows EPA to waive that prohibition if EPA
“determines that the applicant has established that such fuel or
fuel additive or a specified concentration thereof, and the
emission products of such fuel or fuel additive or specified
concentration thereof, will not cause or contribute to a failure
of any emission control device or system (over the useful life
of the motor vehicle, motor vehicle engine, nonroad engine or
nonroad vehicle in which such device or system is used) to
achieve compliance by the vehicle or engine with the
emission standards with respect to which it has been
certified.” 42 U.S.C. § 7545(f)(4) (emphasis added). Put in
plain English, in order to approve a waiver, EPA must find
that the proposed new fuel will not cause any car model made
after 1974 to fail emissions standards.

     Here, EPA issued a waiver for E15 even though it
acknowledged that E15 likely would contribute to the failure
of some cars made after 1974 (namely, those made between
1975 and 2000) to achieve compliance with emissions
standards. EPA maintains that E15 will not contribute to the
failure of emissions control systems in cars built in 2001 and
later. But EPA concedes that E15 likely will contribute to the
failure of emissions control systems in some cars built before
2001.

     EPA’s E15 waiver thus plainly runs afoul of the statutory
text. EPA’s disregard of the statutory text is open and
notorious – and not much more needs to be said.

     EPA does throw out a few arguments to try to get around
the text of the statute. None is persuasive.

     First, EPA tries to weave ambiguity out of clarity in the
statutory text. EPA contends that the statute does not
expressly address partial waivers. But as petitioners aptly
                               22
respond in their brief, to suggest “‘that Chevron step two is
implicated any time a statute does not expressly negate the
existence of a claimed administrative power (i.e., when the
statute is not written in ‘thou shalt not’ terms), is both flatly
unfaithful to the principles of administrative law, and refuted
by precedent.’” Petitioners’ Reply Br. 8-9 (quoting API v.
EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995)). There is no
plausible way to read this statute as allowing partial waivers
of the kind granted by EPA here.

     EPA also suggests that a plain text reading of the statute
would be absurd – “[c]learly Congress did not mean to require
testing of every vehicle or engine.” EPA Br. 23. But that
argument confuses methods with standards. As to methods,
the statute may allow EPA to test a reasonable sample of
vehicles and extrapolate from those results to conclude that a
new fuel will not cause any vehicles to fail their emissions
tests. But the standard remains that a new fuel cannot cause
any vehicles to fail their emissions tests. Just because EPA
can restrict its testing to a reasonable sample does not mean
that EPA can restrict its waivers to a subset.

     EPA then invokes the purpose and legislative history of
the waiver statute. With respect to purpose, there is no single
purpose to this statute. Like many statutes, this one represents
a complex balancing of competing interests and a slew of
compromises. Congress did not pursue one purpose at all
costs. Cf. Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034,
2044 (2012) (“No legislation pursues its purposes at all
costs”) (citation and brackets omitted). Courts respect the
legislative process – and the myriad of interests reflected in
complex legislation – by hewing to the statutory text and not
trying to cherry-pick one purpose from a multitude of
overlapping and sometimes conflicting congressional
purposes. As to the legislative history, to the extent it’s
                              23
relevant, nothing in it suggests that Congress intended to
allow partial waivers. In any event, as the Supreme Court has
repeatedly reminded us, the text of the statute controls. See,
e.g., Mohamad v. Palestinian Authority, 132 S. Ct. 1702,
1709-11 (2012); Milner v. Department of the Navy, 131 S. Ct.
1259, 1266-67 (2011). And the text here is straightforward
and clear.

     EPA separately claims that it has traditionally interpreted
the statute as allowing conditional waivers, and that this
partial waiver is like a conditional waiver. Even if the statute
allows conditional waivers, conditional waivers are not the
same as partial waivers. Conditional waivers generally attach
conditions to the fuel, but such waivers do not attach
limitations on the kind of vehicles that can use that fuel,
which is the nature of the waiver at issue here and is precisely
what the statute does not permit.

      If Congress wanted to authorize this kind of partial
waiver, it could easily have said so (and going forward, could
still easily do so). After all, the statute elsewhere allows EPA
to partially waive other statutory requirements. See, e.g., 42
U.S.C. § 7545(k)(2)(A) (Administrator may “adjust (or waive
entirely)” certain emissions requirements); 42 U.S.C.
§ 7545(m)(3)(A) (Administrator shall “waive, in whole or in
part,” oxygenated gasoline requirements that would prevent or
interfere with the attainment of certain air quality standards);
42 U.S.C. § 7545(o)(7)(A) (Administrator may waive “in
whole or in part” requirements of renewable fuel mandate).
But Congress didn’t authorize partial waivers in the waiver
provision involved in this case.

                             ***

     The food group petitioners and the petroleum group
petitioners each independently have standing to challenge
                            24
EPA’s E15 waiver. On the merits, EPA’s E15 waiver is flatly
contrary to the plain text of the statute. I would grant the
petition for review and vacate EPA’s E15 waiver decision. I
respectfully dissent.
