This post is the third installment in our ongoing coverage of Center for Biological Diversity v. National Highway Traffic Safety Administration.

Earlier this month, the Center for Biological Diversity (CBD) filed its response to National Highway Traffic Safety Administration (NHTSA’s) Petition for Rehearing en banc. NHTSA’s Petition for Rehearing focused on the 9th Circuit’s order that the agency prepare a complete Environmental Impact Statement (EIS) that accounts for the role that auto emissions play in global climate change; NHTSA argued that the circuit court lacks authority to order an EIS. CBD’s response argues that the 9th Circuit was well within its rights to order NHTSA to produce an EIS.

CBD argues that the courts have the authority to “both ‘set aside’ an unlawful finding of no significant impact and ‘compel’ an unlawfully withheld EIS.” So long as “substantial questions are raised as to whether a project” may have a significant impact on the environment, an agency must prepare an EIS. CBD argues that once this threshold is reached, the courts may compel the agency to produce the required EIS. CBD’s filing cites six cases within the 9th Circuit alone that have ordered a full or supplemental EIS, countering NHTSA’s argument that courts do not have this authority.

CBD develops the “significant impact” threshold analysis further, in an attempt to defeat NHTSA’s argument that there is both an intra- and inter-circuit split over how courts are to proceed with this type of case. CBD offers evidence that the cases cited in NHTSA’s petition are factually dissimilar to the current case, because the agency record has been sufficiently developed to allow the court to make the necessary determination:

“Where the reviewing court is asked and able to determine from the agency record that a substantial question of significant impact exists, it can and should order the agency to prepare an EIS. Where, however, that issue is not yet ripe for consideration or the agency’s record is not sufficiently developed to allow the reviewing court to make the ’substantial question’ determination, the court orders the agency to consider the issue further on remand. Each of the ninth Circuit cases cited by NHTSA in its petition adheres to this general approach[.]”

In addition, “the out-of-circuit cases cited by NHTSA merely follow the same approach as this Court, declining to order preparation of an EIS where the agency has not properly considered, or developed a sufficient record to analyze, the ’substantial question’ issue.”

NHTSA also argued in their Petition that ordering an EIS is improper because the agency will need to conduct a new data analysis as a result of the Energy Independence and Security Act of 2007, which set new fuel economy standards. CBD notes, however, that “[u]nless the agency ignores the undeniable impact of fuel economy standards on the climate, the impact of the new rule will be no less significant. Thus, an EIS remains the appropriate remedy.”

For further information about this topic, please contact Akin Gump.