United
States
Court
of
Appeals
FOR
THE
DISTRICT
OF
COLUMBIA
CIRCUIT
Argued
September
3,
2002
Decided
October
22,
2002
No.
99­
1255
Ethyl
Corporation,
Petitioner
v.

Environmental
Protection
Agency
and
Christine
Todd
Whitman,
Administrator,
Environmental
Protection
Agency,
Respondents
Association
of
International
Automobile
Manufacturers,
Inc.,
et
al.,
Intervenors
Consolidated
with
00­
1515,
01­
1464
On
Petitions
for
Review
of
Final
Action
of
the
Environmental
Protection
Agency
­­­­­­­­­

Kevin
L.
Fast
argued
the
cause
for
petitioner.
With
him
on
the
briefs
were
Douglas
S.
Burdin
and
Andrew
J.
Turner.

Alan
D.
Greenberg,
Attorney,
U.
S.
Department
of
Justice,
argued
the
cause
for
respondents.
With
him
on
the
brief
was
John
T.
Hannon,
Attorney,
U.
S.
Environmental
Protection
Agency.
Lois
J.
Schiffer,
Assistant
Attorney
General,
Christopher
S.
Vaden
and
Eric
G.
Hostetler,
Attorneys,
U.
S.
Department
of
Justice,
and
Mark
M.
Kataoka,
Attorney,
U.
S.
Environmental
Protection
Agency,
entered
appearances.

Mitchell
H.
Bernstein
argued
the
cause
for
intervenors
Alliance
of
Automobile
Manufacturers
and
Association
of
International
Automobile
Manufacturers,
Inc.
With
him
on
the
brief
were
Richard
A.
Penna,
Charles
R.
Sensiba,
Julie
C.
Becker
and
Charles
H.
Lockwood
II.

Before:
Edwards
and
Rogers,
Circuit
Judges,
and
Williams,
Senior
Circuit
Judge.

Opinion
for
the
Court
filed
by
Senior
Circuit
Judge
Williams.
Williams,
Senior
Circuit
Judge:
Title
II
of
the
Clean
Air
Act,
42
U.
S.
C.
s
7521
et
seq.
(
1955),
sets
up
a
program
for
the
regulation
of
both
motor
vehicles
and
their
fuels
in
order
to
reduce
harmful
emissions.
Section
206
charges
the
Envi­
ronmental
Protection
Agency
with
testing
new
motor
vehicles
to
ensure
that
each
vehicle's
emissions
will
comply
with
federal
emissions
standards
throughout
its
"
useful
life."
42
U.
S.
C.
s
7525(
a)(
1).
Section
206(
d)
says
that
the
agency
"
shall
by
regulation
establish
methods
and
procedures
for
making
tests
under
this
section."
Id.
s
7525(
d)
(
emphasis
added).

In
a
rulemaking
pursuant
to
s
206,
the
EPA
adopted
a
Compliance
Assurance
Program
or
"
CAP
2000."
64
Fed.
Reg.
23,906
(
1999).
CAP
2000
does
not,
however,
set
out
"
methods
and
procedures
for
making
tests."
Rather,
it
es­
tablishes
a
framework
for
automobile
manufacturers
to
devel­
op
their
own
tests,
to
be
used
once
the
EPA
gives
approval,
case­
by­
case,
after
private
proceedings
with
each
manufactur­
er.

Petitioner
Ethyl
manufactures
and
markets
fuel
and
lubri­
cant
additives
for
use
in
motor
vehicles.
It
argues
that
CAP
2000
violates
the
Act
because
it
provides
for
test
procedures
and
methods
to
be
vetted
in
individual
closed
proceedings
rather
than
in
a
notice­
and­
comment
rulemaking.
And
it
claims
to
be
injured
because
the
mechanism
adopted
by
the
EPA
deprives
it
of
the
opportunity
to
observe
the
rulemaking
process
and
thus
gain
information
useful
in
its
efforts
both
to
develop
and
improve
its
products
and
to
key
them
to
the
certification
tests.
For
the
reasons
given
below
we
grant
the
petition.

*
*
*

Before
a
manufacturer
may
introduce
a
new
motor
vehicle
into
commerce,
it
must
obtain
an
EPA
certificate
indicating
compliance
with
the
requirements
of
the
Act
and
applicable
regulations.
It
submits
an
application
containing
test
data
and
other
information
specified
by
the
EPA,
which
issues
a
certificate
if
the
manufacturer
has
shown,
among
other
things,
that
the
vehicle's
emissions
control
systems
will
achieve
compliance
with
emissions
standards
over
the
vehi­
cle's
full
useful
life.
See
40
CFR
s
86.1848­
01.

Critical
here
is
the
question
of
the
control
systems'
possible
deterioration
over
time.
Before
1993
EPA
had
had
a
durabil­
ity
test
that
called
for
prototype
vehicles
to
be
driven
over
a
50,000­
mile
course
known
as
the
Automobile
Manufacturers
Association
("
AMA")
driving
cycle.
58
Fed.
Reg.
3994,
3995/
1
(
1993).
In
1993
it
adopted
a
"
revised
durability
program"
or
"
RDP"
that
retained
that
test
"
as
the
standard
EPA­
defined
procedure."
Id.
But
the
RDP
regulations
also
permitted
automobile
companies
to
develop
alternative
test
methods
and
procedures
provided
that
they
(
a)
obtained
EPA
approval
for
each
such
test
and
(
b)
performed
in­
use
testing
to
verify
the
accuracy
of
the
emissions
deterioration
predictions
made
by
their
tests.
See
id.
at
3995.
The
EPA
did
not
adopt
these
tests
through
rulemaking
but
simply
approved
them
on
a
case­
by­
case
basis.

In
May
1999
the
EPA
replaced
RDP
with
CAP
2000.
These
regulations
eliminate
the
AMA
driving
cycle
as
an
EPA­
defined
test
method.
Instead,
the
program
available
as
an
alternative
in
1993­
99,
under
which
manufacturers
are
to
develop
their
own
emissions
durability
test
methods
and
procedures,
has
become
the
sole
method.
Thus,
rather
than
promulgating
methods
and
procedures
for
durability
testing
itself,
the
EPA
now
requires,
through
CAP
2000,
that
"[
t]
he
manufacturer
shall
propose"
a
durability
program.
40
C.
F.
R.
s
86.1823­
01.
Each
manufacturer
is
required
to
obtain
EPA
approval
for
its
tests,
and
must
verify
its
results
through
in­
use
testing.

Manufacturer­
proposed
tests
under
CAP
2000
must
(
a)
"
effectively
predict
the
expected
deterioration
of
candidate
in­
use
vehicles
over
their
full
and
intermediate
useful
life,"
and
(
b)
be
"
consistent
with
good
engineering
judgment."
40
C.
F.
R.
s
86.1823­
01(
a).
Within
these
criteria,
the
manufacturer­
developed
mileage
accumulation
procedures
are
to
be
based
upon
whole­
vehicle
full­
mileage
accumulation,
whole­
vehicle
accelerated
mileage
accumulation
(
e.
g.,
where
40,000
miles
on
a
severe
accumulation
cycle
is
equivalent
to
100,000
miles
of
normal
in­
use
driving),
bench
aging
of
individual
components
or
systems,
or
other
approaches
approved
by
the
Administrator.

40
C.
F.
R.
s
86.1823­
01(
a)(
1)(
ii).
The
"
bench
aging"
referred
to
is
a
system
whereby
components
are
removed
from
the
vehicle
and
tested
for
durability
separately.
40
C.
F.
R.
s
86.1823­
01(
a)(
1)(
B).

In
adopting
this
system
of
individualized
test
approval,
the
EPA
explicitly
found
that
"
rulemaking
for
each
durability
program
is
not
required."
64
Fed.
Reg.
at
23,914/
3.
It
also
said,
in
a
response
to
petitions
for
reconsideration
by
Ethyl,
that
public
participation
in
the
certification
process
would
interfere
with
the
process
of
reviewing
manufacturers'
sub­
missions
"
because
of
the
large
amount
of
information
claimed
confidential"
and
that,
because
the
process
was
annual,
the
use
of
notice­
and­
comment
procedures
would
be
"
administra­
tively
burdensome."
August
23,
2001
Response
to
Ethyl
Corporation
Petitions
Denying
Reconsideration
of
Three
EPA
regulations:
CAP
2000,
Heavy
Duty
Gasoline,
and
OBD/
IM,
EPA
Air
Docket
A­
96­
50,
No.
VI­
C­
03,
39.

Ethyl
challenges
not
only
CAP
2000
but
also
regulations
governing
the
certification
of
heavy
duty
vehicles
and
en­
gines,
65
Fed.
Reg.
59,896
(
2000),
which
incorporate
the
CAP
2000
regulations
by
reference,
and
EPA's
denial
of
its
various
petitions
for
reconsideration,
66
Fed.
Reg.
45,777
(
2001).

*
*
*

The
EPA
argues
that
we
need
not
reach
the
merits
be­
cause,
it
says,
Ethyl
lacks
both
Article
III
and
"
prudential"
standing.
We
think
it
has
both.

As
is
well
known,
Article
III
requires
a
party
seeking
judicial
relief
to
show
(
1)
that
it
has
suffered
an
"
injury
in
fact";
(
2)
that
the
injury
is
caused
by
or
fairly
traceable
to
the
challenged
actions
of
the
defendant;
and
(
3)
that
it
is
likely
that
the
injury
will
be
redressed
by
a
favorable
deci­
sion.
Lujan
v.
Defenders
of
Wildlife,
504
U.
S.
555,
560­
561
(
1992).

Ethyl's
assertions
of
injury
fall
into
two
categories.
First,
as
we've
already
mentioned,
it
says
that
as
a
manufacturer
of
additives
for
motor
vehicle
fuels
it
has
an
interest
in
under­
standing
the
test
methods
and
procedures
by
which
the
EPA
certifies
new
motor
vehicles.
CAP
2000'
s
provision
for
closed­
door
adoption
of
emission
test
procedures
deprives
Ethyl
of
information
that
might
well
help
it
develop
and
improve
its
products
with
an
eye
to
conformity
to
emissions
needs.

Second,
Ethyl
says
that
CAP
2000
deprives
it
of
informa­
tion
that
might
be
useful
for
securing
EPA
approval
for
its
own
fuel
additive
products
under
the
Act.
It
points
in
particular
to
s
211(
f),
which
prohibits
use
of
any
fuel
or
fuel
additive
that
is
not
"
substantially
similar"
to
the
fuels
used
to
certify
vehicles
under
s
206,
unless
a
waiver
is
obtained
from
EPA.
See
42
U.
S.
C.
s
7545(
f).

EPA's
response
to
this
focuses
almost
entirely
on
Ethyl's
asserted
interest
in
the
s
211(
f)
waiver
process,
completely
ignoring
its
interest
in
obtaining
information
about
vehicle
certification
for
present­
day
research
and
development
of
products
that
will
be
judged
(
by
both
the
government
and
consumers)
according
to
their
effect
on
vehicle
emissions.
The
Supreme
Court
has
made
clear,
however,
that
a
denial
of
access
to
information
can
work
an
"
injury
in
fact"
for
stand­
ing
purposes,
at
least
where
a
statute
(
on
the
claimants'
reading)
requires
that
the
information
"
be
publicly
disclosed"
and
there
"
is
no
reason
to
doubt
their
claim
that
the
information
would
help
them."
Federal
Election
Comm'n
v.
Akins,
524
U.
S.
11,
21
(
1998).
Here,
against
Ethyl's
fairly
detailed
description
of
how
the
information
that
open
rulemaking
proceedings
provide
would
prove
useful
to
it,
the
EPA
offers
little
more
than
a
vague
shrug
of
skepticism.
Because
Article
III
standing
is
clear
from
Ethyl's
informa­
tional
and
market
interests
in
the
vehicle­
testing
program,
we
need
not
address
the
interest
based
on
its
need
to
seek
variances
under
s
211(
f).

To
show
"
prudential"
standing,
Ethyl
must
fall
within
the
"
zone
of
interests"
protected
or
regulated
by
the
Act.
See
Bennett
v.
Spear,
520
U.
S.
154,
162
(
1997).
The
test
is
not
a
particularly
demanding
one,
Clarke
v.
Securities
Industry
Association,
479
U.
S.
388,
399
(
1987),
and
includes
not
only
those
challengers
expressly
mentioned
by
Congress,
but
also
unmentioned
potential
challengers
that
Congress
would
have
thought
useful
for
the
statute's
purpose
(
whose
challenges
thereby
support
an
inference
that
Congress
would
have
in­
tended
eligibility).
See
Hazardous
Waste
Treatment
Council
v.
EPA,
861
F.
2d
277,
283
(
D.
C.
Cir.
1988).
It
excludes
parties
whose
interests
are
not
consistent
with
the
purposes
of
the
statute
in
question.
See
Clarke,
479
U.
S.
at
399.
As
a
manufacturer
of
fuel
additives
seeking
an
open
process
for
testing
the
emissions
control
systems
whose
character
may
affect
the
efficacy
of
its
products,
Ethyl's
interests
appear
congruent
with
those
of
the
statute,
i.
e.,
the
development
of
products
that
will
reduce
harmful
air
pollutants.
Indeed,
this
court
has
long
recognized
the
interdependence
between
motor
vehicle
certification
under
the
Act
(
the
process
at
stake
here)
and
fuel
regulations
(
under
which
Ethyl
is
a
direct
regulatee).
See
e.
g.,
Lubrizol
Corp.
v.
EPA,
562
F.
2d
807,
810
(
D.
C.
Cir.
1977);
Amoco
Oil
Co.
v.
EPA,
501
F.
2d
722,
737
(
D.
C.
Cir.
1974).
The
case
is
not
unlike
National
Cottonseed
Products
Association
v.
Brock,
825
F.
2d
482,
489­
492
(
D.
C.
Cir.
1987),
where
we
found
standing
for
a
manufacturer
whose
respira­
tors
had
been
assigned
a
low
rating
by
an
agency
supervising
conditions
in
a
workplace
for
which
the
respirators
were
a
potential
means
of
compliance.
We
treated
the
respirator
seller's
interest,
and
that
of
the
regulated
firms,
as
"
'
two
sides
of
the
same
coin.'
"
Id.
at
491
(
quoting
FAIC
Sec.,
Inc.
v.
United
States,
768
F.
2d
352,
359
(
D.
C.
Cir.
1985)).

On
to
the
merits:
As
we
said,
s
206(
d)
of
the
Act
states
that
the
administrator
"
shall
by
regulation
establish
methods
and
procedures
for
making
tests
under
this
section."
42
U.
S.
C.
s
7525(
d).
Although
special
provisions
govern
review
under
the
Act,
here
the
relevant
provisions
are
the
same
as
under
the
Administrative
Procedure
Act.
We
are
to
reverse
the
challenged
EPA
actions
if
they
are
"
arbitrary,
capricious,
an
abuse
of
discretion,
or
otherwise
not
in
accordance
with
law"
or
"
in
excess
of
statutory
jurisdiction,
authority,
or
limitations."
42
U.
S.
C.
s
7607(
d)(
9)(
A),
(
C).
CAP
2000
does
not,
as
s
206
directs,
"
establish
methods
and
procedures
for
making
tests,"
and
it
is
the
only
"
regula­
tion"
in
the
picture.
Instead,
it
provides
criteria
for
individu­
al
automobile
manufacturers
to
develop
their
own
test
meth­
ods
and
procedures,
which
the
EPA
approves
in
a
process
that
does
not
involve
rulemaking.

Conceivably
s
206(
d)'
s
requirement
that
EPA
use
regula­
tion
to
"
establish
methods
and
procedures
for
making
tests"
could
be
squared
with
the
record
by
reading
"
making
tests"
as
referring
to
devising
the
tests
rather
than
conducting
them.
Thus
Congress
would
be
mandating
that
the
EPA
use
regulations
merely
to
set
up
a
system
for
picking
tests
(
which
might
then
be
picked
any
old
way)
rather
than
mandating
the
use
of
regulations
to
decide
how
the
tests
themselves
should
be
conducted.
But
nothing
in
the
context
of
the
provision
suggests
that
the
"
establish[
ment]"
under
s
206(
d)
is
to
be
so
remote
from
the
actual
process
of
conducting
tests,
and
it
is
hard
to
see
any
congressional
purposes
that
would
be
served
by
such
a
requirement.
Indeed,
neither
in
the
administrative
proceedings
nor
before
us
has
the
EPA
invoked
such
a
reading.

Rather,
the
EPA
seeks
to
defend
CAP
2000
by
treating
the
issue
as
involving
simply
the
level
of
specificity
or
generality
at
which
it
was
supposed
to
act,
citing
American
Trucking
Associations
v.
Department
of
Transportation,
166
F.
3d
374
(
D.
C.
Cir.
1999)
(
agency
to
promulgate
by
regulation
safety
rating
"
requirements"
and
means
to
determine
whether
carri­
ers
had
met
the
requirements),
and
New
Mexico
v.
EPA,
114
F.
3d
290
(
D.
C.
Cir.
1997)
(
agency
to
promulgate
"
criteria"
for
a
certification
process).
In
those
cases,
as
Congress
had
not
specified
the
level
of
specificity
expected
of
the
agency,
we
held
that
the
agency
was
entitled
to
broad
deference
in
picking
the
suitable
level.
See
American
Trucking,
166
F.
3d
at
379­
80;
New
Mexico,
114
F.
3d
at
294.
But
here
Ethyl's
challenge
is
not
that
the
EPA
was
too
general
in
establishing
test
procedures
by
regulation,
but
that
it
didn't
establish
them
by
regulation
at
all.

EPA's
failure
to
act
by
regulation
is
thus
similar
to,
and
controlled
by,
our
decision
in
MST
Express
v.
Department
of
Transportation,
108
F.
3d
401
(
1997),
which
preceded
Ameri­
can
Trucking
and
involved
the
same
statutory
requirement
of
proceeding
by
regulation
in
setting
safety
requirements
for
common
carriers.
Rather
than
promulgate
regulations
stat­
ing
the
means
for
determining
whether
carriers
met
the
safety
fitness
requirements,
the
agency
had
simply
required
a
carrier
to
"
demonstrate
that
it
has
adequate
controls
in
place"
to
ensure
compliance
with
the
substantive
requirements,
and
had
developed
a
"
safety
fitness
rating
methodology."
Id.
at
402,
403.
This
methodology
provided
agency
inspectors
with
detailed
guidelines
for
evaluating
a
motor
carrier's
safety
rating­­
but
it
was
not
the
product
of
notice­
and­
comment
rulemaking.
See
id.
at
403.
We
found
that
the
agency
had
"
failed
to
carry
out
its
statutory
obligation
to
establish
by
regulation
a
means
of
determining
whether
a
carrier
has
complied
with
the
safety
fitness
requirements."
Id.
at
406.
EPA's
error
here
is
similar.

There
may,
of
course,
be
cases
in
which
it
is
hard
to
distinguish
between
promulgations
of
(
1)
vaguely
articulated
test
procedures
(
which
would
be
reviewed
deferentially
under
such
cases
as
American
Trucking)
and
(
2)
procedures
for
later
development
of
tests
(
invalid
under
MST
Express).
Both,
after
all,
necessarily
imply
a
later
(
or
at
least
different)
proceeding
in
which
the
agency
will
fill
in
details.
In
this
case,
however,
one
can
distinguish
on
the
basis
of
the
lan­
guage
used
by
the
agency.
With
CAP
2000,
the
EPA
does
not
claim
to
have
itself
articulated
even
a
vague
durability
test.
Rather,
CAP
2000
requires
that
"[
t]
he
manufacturer
shall
propose
a
durability
program"
for
EPA
approval.
40
C.
F.
R.
s
86.1823­
01(
a).
It
thus
falls
on
the
forbidden
side
of
the
line.

The
EPA
also
defends
CAP
2000
on
grounds
that
seem
to
flout
the
evident
congressional
purpose.
First,
it
argues
that
because
it
has
chosen
to
approve
test
procedures
only
for
one
model
year
at
a
time,
proceeding
by
regulation
would
be
administratively
burdensome.
Obviously
this
cannot
over­
come
a
clear
congressional
command.
Further,
it
is
true
only
in
the
sense
that
an
open
procedure­­
the
very
thing
mandat­
ed
by
Congress­­
is
less
convenient
than
a
closed
one.
It
may
be.
Other
parties
may
raise
questions
or
find
fault
in
proce­
dures
that
look
fine
to
the
agency
and
the
auto
makers.
But
Congress
has
already
made
the
trade­
off.
Nothing
in
our
opinion
requires
that
EPA
use
only
a
"
one­
size­
fits­
all"
test
method.
All
that
is
required
is
that
it
establish
its
proce­
dures,
no
matter
how
variegated,
"
by
regulation."

Finally,
both
EPA
and
the
auto
manufacturers
who
inter­
vene
on
its
behalf
argue
that
the
approach
of
CAP
2000
is
necessary
because
of
the
presence
of
what
the
manufacturers
believe
to
be
"
confidential
business
information"
("
CBI").
If
the
EPA
were
to
establish
test
methods
and
procedures
by
regulation,
they
say,
important
CBI
might
become
public,
allowing
competitors
to
"
back
engineer"
their
products.
See
Tr.
of
Oral
Argument
at
29­
30.
Moreover,
they
argue
that
the
sheer
"
amount
of
claimed
confidential
business
informa­
tion
would
significantly
reduce
the
usefulness
of
public
notice
and
an
opportunity
to
comment
upon
manufacturers'
durabili­
ty
programs."
EPA
Br.
at
44.

It
is
hard
to
know
what
to
make
of
this
argument.
First
and
foremost,
s
208(
c)
provides
that
the
administrator
may
protect
the
confidentiality
of
"
methods
or
processes
entitled
to
protection
as
trade
secrets."
42
U.
S.
C.
s
7542(
c).
Espe­
cially
given
this
available
remedy,
it
seems
to
us
a
complete
non
sequitur
to
suggest
that
because
a
procedure
(
the
rule­
making
mandated
by
s
206(
d))
may
involve
some
protectable
CBI,
the
entire
procedure
should
be
short­
circuited
and
replaced
with
a
cluster
of
closed
bargaining
sessions
between
the
EPA
and
each
manufacturer.
Congress
obviously
expect­
ed
that
rulemakings
would
proceed
despite
the
existence
of
CBI
that
would
require
protection
under
s
208(
c).
Plainly
the
theory
provides
no
basis
for
disregarding
the
congression­
al
command.

*
*
*

CAP
2000,
rather
than
constituting
an
EPA
establishment
"
by
regulation"
of
"
methods
and
procedures
for
making
tests,"
as
required
by
s
206(
d),
is
instead
a
promulgation
of
criteria
for
the
later
establishment
of
such
methods
and
procedures
by
private
negotiation
between
the
EPA
and
each
regulated
auto
maker.
So
it
is
"
not
in
accordance
with
law."
We
therefore
vacate
the
CAP
2000
program
and
remand
the
case
to
the
EPA
with
instructions
to
establish
test
methods
and
procedures
by
regulation.

So
ordered.
