ELR Citation: ELR 20464
No(s). s. 86-1646, 89-1278 (D.C. Cir. Jan 19, 1990)

The court holds that the National Highway Traffic Safety Administration's (NHTSA's) decision not to further lower the minimum corporate average fuel economy (CAFE) standards for model years 1987 to 1989 was not arbitrary and capricious. The NHTSA lowered the CAFE standards from the 27.5 miles per gallon (mpg) level established under the Energy Policy and Conservation Act (EPCA) to 26 mpg for model years 1987-1988 and to 26.5 mpg for model year 1989. Petitioners allege that the NHTSA inadequately considered safety impacts in refusing to further lower the standards. The court initially holds that a nonprofit consumer organization has standing to challenge the EPCA rulemaking on behalf of its members. The members have suffered "injury-in-fact" from their restricted opportunity to purchase larger vehicles that they prefer for safety, comfort, and performance. The organization has also satisfied the causation and redressability requirements of standing. The NHTSA's action is substantially likely to cause the petitioners' injury even though the injury hinges on the reactions of the car manufacturers. There is substantial evidence in the administrative record that higher CAFE standards reduce the availability of larger cars by causing the downsizing of vehicles and by shifting the vehicle mix available to the consumer. Judicial invalidation of NHTSA's standards will redress petitioners' lost opportunity to purchaser passenger vehicles, since manufacturers are likely to respond to lower CAFE standards by continuing or expanding production of larger vehicles. The court holds that it lacks authority to impose prudential limitations on standing under EPCA.

The court holds that the NHTSA's establishment of the CAFE standards was not arbitrary and capricious. EPCA does not directly address how the NHTSA should weight safety in setting the standards. The factual record before the NHTSA is sufficiently ambiguous that it was not arbitrary or capricious for the agency to conclude that the CAFE standards would not have adverse safety consequences.

The court holds that neither petitioner has organizational standing to challenge the standards under the National Environmental Policy Act (NEPA). Petitioners have failed to show how the NHTSA's failure to assess the safety impacts of the standards in an environmental impact statement has significantly harmed their ability to educate the public about highway safety. Although there appears to be a lower threshold for establishing injury to informational interests in NEPA cases, this lower threshold applies only when the information sought relates to environmental interests. Even if petitioners could establish injury-in-fact to their programmatic activities, their claims would be barred by prudential limitations. Petitioners' concern with receiving and disseminating adequate information about highway safety is not arguably within the zone of interests protected or regulated by NEPA.

A concurring judge would hold that the consumer organization has standing under EPCA based on the surcharge that some manufacturers added to the retail prices of their larger and less fuel-efficient cars. The judge would hold that the prudential limitations to standing apply in EPCA cases and that petitioners are arguably within the zone of interests protected or regulated by EPCA.

Counsel for Petitioners
Sam Kazman
Competitive Enterprise Institute
233 Pennsylvania Ave. SE, Ste. 200, Washington DC 20003
(202) 547-1010

Counsel for Respondent
John A. Bryson, Barbara C. Biddle
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2740

Counsel for Intervenors
Edward W. Warren
Kirkland and Ellis
655 15th St. NW, Ste. 1200, Washington DC 20005
(202) 879-5018

Before WALD, Chief Judge, RUTH B. GINSBURG and D.H. GINSBURG, Circuit Judges.