NHTSA to 9th Circuit: No Authority To Demand Environmental Impact Statement
In our previous coverage of Center for Biological Diversity v. National Highway Traffic Safety Administration, Perry Rosen noted that one likely course of action was for NHTSA to petition for a rehearing en banc - before the full Ninth Circuit, rather than just the typical panel of three judges. NHTSA recently filed just such a petition before the Ninth Circuit.
In the original ruling, the judges found that the new CAFE (fuel economy) standards were arbitrary and capricious. In addition, the court held that the Environmental Assessment (EA) was inadequate, and ordered NHTSA to produce a full Environmental Impact Statement (EIS) that accounts for the effect of emissions on climate change. An EIS is required when an agency find that its proposed action will have a significant impact on the environment.
NHTSA’s petition focuses on the second aspect of the decision, and argues that the 9th Circuit does not have the authority to order a full EIS. Instead, NHTSA argues that it should be allowed, on remand, to address any deficiencies in the EA and potentially avoid the preparation of a full EIS.
NHTSA argues that administrative law “only allows a reviewing court to ‘hold unlawful and set aside’ agency action that if finds arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citing a long string of Supreme Court cases, the agency writes that “when a reviewing court finds that an administrative agency has erred, the appropriate remedy is to remand the matter back to the agency for ‘further consideration.’” The court does not substitute its own judgment for that of the agency, but merely reviews the agency’s determinations.
The petition notes that the Ninth Circuit is currently split as to how to handle this type of case under the National Environmental Policy Act (NEPA). At least twice, most recently in 2005, the Ninth Circuit has ordered an agency to prepare an EIS. However, on at least four occasions between 1985 and 2006, the Ninth Circuit has remanded for the agency to determine whether to prepare an EIS. At least three other Circuits, including the Second and DC Circuits, follow the policy of remanding NEPA cases to the agency to determine whether an EIS is necessary.
A further complicating factor in this case is the new CAFE standards that are part of the Energy Independence and Security Act of 2007. “Because NHTSA must now issue new fuel economy rules for [model year] 2011 and beyond, pursuant to the direction of Congress to begin increasing CAFE levels to at least 35 mpg, NHTSA will need to engage in a new analysis . . . . The question whether the agency should prepare an EIS cannot be resolved until that process is completed.”
In other words, NHTSA is arguing that any EIS it produces here will be based on outdated assumptions and data, given the new statutory mandate for higher fuel economy standards.
This is a very important case moving forward. If NHTSA’s arguments are adopted by the Ninth Circuit, it will have a significant impact on the ability to challenge agency determinations that actions will not have a significant impact on the environment. By remanding the decision to the agency level, courts would be further insulating the decision-making process from public scrutiny. If agencies are routinely given multiple attempts to create an EA that finds no significant impact, it threatens to undermine the primary purpose of conducting environmental reviews under NEPA.
The Center for Biological Diversity will be filing its response to the petition within the next few weeks.
Hat tip to Warming Law and thanks to Kassie Siegel at the Center for Biological Diversity for providing a copy of NHTSA’s petition.