ELR Citation: ELR 20170
No(s). s. 86-1649 et al (D.C. Cir. Aug 24, 1990)

The court rejects challenges under the National Environmental Policy Act (NEPA) to the National Highway Traffic Safety Administration's (NHTSA's) decision not to prepare an environmental impact statement (EIS) for its corporate average fuel economy (CAFE) standards for model years 1987-1988 and 1989. Judge D.H. Ginsburg wrote the decision for the court on all issues except for the standing of the environmental group. On that issue, he wrote a dissent that would hold that the environmental group lacks standing to pursue its claim concerning model year 1989. The environmental group asserts that the NHTSA should have prepared an EIS to consider the adverse climatic effect of the increase in fossil fuel consumption that would result from a standard lower than 27.5 miles per gallon (mpg), the presumptive standard established by the Energy Policy and Conservation Act. The dissent would hold that the group has alleged sufficient injury from the consequences of global warming, but failed to explain its casual connection to the challenged decision and how the relief it seeks could redress the harm. The group has failed to explain how the alleged environmental catastrophe could be traced causally to the model year 1989 standard being set at 26.5 rather than 27.5 mpg. Further, since the increase in greenhouse gases that the NHTSA's decision can be expected to generate is so small in relation to the amount necessary to produce the environmental catastrophe, the injury is not likely to be redressed by a favorable decision. Judge D.H. Ginsburg, now writing for the court, holds that city and state petitioners have standing to challenge the NHTSA's decision to set a 26.0 mpg standard for model years 1987-1988. They claim that the decision adversely affects air quality in their urban areas, making it more difficult for them to comply with the Clean Air Act. The court holds that the increased risk that the NHTSA might overlook this adverse impact in reaching its decison without the benefit of EIS is a cognizable injury. The injury is fairly traceable to the challenged decision not to prepare an EIS. The injury is also redressable, even though model years 1988-1989 have passed, since manufacturers may carry forward deficits incurred in those model years. The injury is also within the zone-of-interests protected by NEPA.

Judge D.H. Ginsburg, still writing for the court, holds that the NHTSA's decision not to prepare an EIS for the 1987-88 rulemaking was not arbitrary or capricious. The court initially holds that information in a supplement released with the final rule was available to the NHTSA decisionmakers early enough to support the agency's decision not to prepare an EIS. The court next holds that the NHTSA's determination that its decision would not have a significant effect on the environment was not arbitrary or capricious. The NHTSA's use of the full extent of its legal authority in setting the standard at the statutory minimum of 26.0 mpg does not mean that the environmental impact of that decision will be significant. The court next rejects petitioners' argument that the NHTSA selectively compared some impacts to national emission figures that would render all actions insignificant. The NHTSA did not err in concluding that the cumulative impact of the rule is insignificant. The NHTSA's decision to focus primarily on the fleets of General Motors and Ford in calculating the cumulative impact of the proposed standard is not a flaw in its analysis. The NHTSA's failure to discuss the effect of the standard on the manufacturers' incentive to innovate does not undermine its conclusion that the cumulative impact of its standard is insignificant. The NHTSA reasonably concluded that the manufacturers' actual, as opposed to hypothetical, responses to a 27.5 mpg standard would not produce a significant environmental improvement over a 26.0 mpg standard. The NHTSA reasonably concluded that the 26.0 mpg standard would not impose any significant burden on Clean Air Act nonattainment areas. The NHTSA adequately analyzed the relationship between the standards and tailpipe emissions. The NHTSA's decision did not violate its own guidelines, which ordinarily require it to prepare an EIS for actions involving inconsistency with environmental laws.

Writing for the court, Judge Wald holds that the environmental group has standing under NEPA to challenge the 1989 standard. The court holds that the group is "aggrieved" within the meaning of NEPA. The group has shown that the NHTSA could overlook the impact of the CAFE rollback on global warming if it does not conduct a full-scale EIS. It has also shown that its members have a sufficient geographical nexus to the location where the environmental consequences are likely to be felt. The group submitted affidavits demonstrating the likelihood of particularly devastating consequences from global warming to its members in California. The court also holds that the group's concerns about global warming fall within NEPA's zone of interest. The court holds that the group has satisfied the causation requirement for standing. The group need not demonstrate the precise cause-and-effect relationship between the potential environmental consequences of global warming and a CAFE rollback of one mile per gallon. The group need only establish a reasonable likelihood that if the NHTSA prepared an EIS, it would arrive at a different conclusion about the CAFE rollback. The group has provided sufficient data to do that. It has provided data to show that a reduction in the CAFE standard affects increases in gasoline consumption and carbon dioxide emissions, which synergistically contribute to the likelihood of the alleged environmental harm. The court holds that the group has satisfied the redressability requirement for standing by showing that preparation of an EIS will ensure that any serious effects in global warming will not be overlooked.

Judge Wald dissents from the court's conclusion upholding the NHTSA's decision not to prepare an EIS for the model year 1989 rulemaking. The dissent concludes that the NHTSA inadequately explained why the admitted increase in carbon dioxide is insignificant within the context of the environmental harm posed by global warming. The NHTSA's calculations showing that a one mile per gallon CAFE reduction would cause an increase in overall carbon dioxide emissions of a fraction of one percent does not demonstrate that the environmental effects would be insignificant under NEPA. Judge Wald also dissents from the court's holding that the NHTSA's environmental assessment (EA) for the 1987-1988 model year rollback was adequate. The dissent concludes that the EA does not adequately address the claim by city and state petitioners that nonattainment areas face particular difficulties from a reduced CAFE rollback. Further, the NHTSA did not sufficiently address the potential incentive effect of the lower standard on other car manufacturers.

Judge R.B. Ginsburg concurs with Judge D.H. Ginsburg's disposition of the challenges by city and state petitioners to the CAFE rollbacks for model years 1987-1988. She concurs with Judge Wald that the environmental group has standing to challenge the 1989 rulemaking. However, she concurs with Judge D.H. Ginsburg that the group's challenge fails on the merits.

Counsel for Petitioners
Peter Lehner
New York City Law Department
100 Church St., New York NY 10007
(212) 374-3174

Ralph C. Cavanagh
Natural Resources Defense Council
90 New Montgomery St., Ste. 620, San Francisco CA 94105
(415) 777-0220

Richard E. Ayres
Natural Resources Defense Council
1350 New York Ave. NW, Ste. 300, Washington C 20005
(202) 783-7800

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

Counsel for Respondents
John A. Bryson, Barbara C. Biddle, Dirk D. Snel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000