Center for Auto Safety v. Thomas

No. 85-1515 (D.C. Cir. September 16, 1988)

On petition for limited rehearing, the court vacates its earlier en banc decision, 18 ELR 21118. Although the court had evenly divided on whether petitioners had standing to challenge the Environmental Protection Agency's formula for calculating automobile fuel efficiency, it had reinstated the panel decision, 17 ELR 20712, in which standing had been found and a disposition made on the merits. The court now holds that reinstatement of the panel opinion was improper, since a majority of the en banc court did not find jurisdiction.

Counsel for Petitioners
Cornish F. Hitchcock, Alan B. Morrison, William B. Schultz
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 785-3704

Counsel for Respondents
Roger J. Marzulla, Ass't Attorney General; Peter R. Steenland Jr.; Anne S. Almy; Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Nancy A. Ketcham-Colwill
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

Before: WALD, Chief Judge, and ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D. H. GINSBURG, and SENTELLE, Circuit Judges.

[18 ELR 21408]

PER CURIAM:

The Environmental Protection Agency (the "Agency"), respondent in the original proceeding, and representatives of the automotive industry intervening on behalf of the Agency have petitioned for a limited rehearing of the judgment of the en banc court set out at 847 F.2d 843 (D.C. Cir. 1988). In the per curiam opinion accompanying that judgment, the court stated that although its members were evenly divided as to the existence of Article III standing on the original petitioners' part, we would reinstate the panel decision in which standing had been found and a disposition made on the merits. This action was taken in light of the fact that there was no district court opinion and the agency itself had no cause to pass on the Article III standing issue. We ruled, however, that the reinstatement of the panel opinion was to have no precedential effect in future cases as to standing.

[18 ELR 21409]

After consideration of the arguments set forth in the petitions for rehearing submitted by the Agency and intervenors and in original petitioners' reply thereto, we have decided that our original disposition was not an appropriate one. We now hold that as a majority of the en banc court was unable to satisfy itself that the court had jurisdiction, the court should not have taken any affirmative action on the merits, including reinstatement of the panel opinion. Accordingly, we now vacate the opinion and judgment of May 17, 1988, and deny the original petition for review, leaving the Agency decision in effect.