I have previously noted that standing is a double-edged sword. Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court. However, as the D.C. Circuit Court of Appeals demonstrated yesterday, the regulated community is sometimes hoist on its own collective petard.
The decision in Alliance of Automobile Manufacturers v. EPA in the challenge to EPA’s E15 rule wasn’t surprising. After all, it was the second time that the Court concluded that the industry petitioners don’t have standing. The Court stated that both plaintiffs “failed to offer evidence connecting sales of E15 under the regulation to injuries that [their] members are sufficiently likely to suffer so as to afford [them] standing.”
To me, the more interesting question is why this case was brought. Given the prior decision in Grocery Manufacturers Association v. EPA, this case was always going to be, at best an uphill battle. Given that the standing shoe will generally be on the other foot – so to speak – it seems to me that regulated companies might think twice before bringing cases in which standing is a close question. Even if the court finds standing exists, the company might just have set a precedent that will come back to haunt it in the future when it is trying to argue that some citizens group does not have standing.